|
|||||||
|
|
|
|||||
|
|
|||||||
|
|||||||
|
|
|
|||||
|
|
|||||||
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
2006-387
COMMONWEALTH
V.
NEIL ENTWISTLE
DEFENDANT’S MOTION TO DISMISS INDICTMENT AND OPPOSITION TO COMMONWEALTH’S MOTION FOR TAKING BUCCAL SWABBING
The Commonwealth has moved for Court authorization to compel Neil Entwistle to provide a buccal swab “for the purpose of scientific DNA testing and comparison.” By this pleading Mr. Entwistle opposes the Commonwealth’s motion and submits that the indictment must be dismissed as a remedy for Commonwealth’s repeated use of what it knew to be unreliable DNA analysis results.
The repeated use of these unreliable DNA analysis results clearly violate Mr. Entwistle’s right to due process of law and fair trial as guaranteed by the Fifth and Sixth Amendments to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights.
As an initial observation, the Commonwealth has conducted scientific DNA testing and comparison analysis, and has reported results which, in the Commonwealth’s choice of language, show a match between Neil Enwistle’s DNA and DNA on various evidentiary items including what the Commonwealth believes to be the murder weapon –a .22 caliber revolver. Based on the assertions disseminated by the Commonwealth, there is no need to obtain a buccal swab from Mr. Entwistle and the Commonwealth’s motion should be denied.
By affidavit dated September 6, 2006, Gwen Pino, Supervisor with the Massachusetts Department of State Police Crime Laboratory, has attested that “in order for DNA analysis to be reliable, a DNA standard sample should be taken directly from a suspect or defendant in accordance with laboratory policy guidelines.” Indeed, the Commonwealth seeks Mr. Entwistle’s DNA so that it might obtain reliable DNA analysis of evidence gathered during the course of this investigation.
In other words, the Commonwealth is asserting that it has previously obtained DNA comparison results, that it has relied upon those results and disseminated those results in various forums but now acknowledges that those results are not reliable.
On January 22, 2006 the bodies of Rachel Entwistle and Lillian Entwistle were found in their home at 6 Cubs Path, Hopkinton, Massachusetts.
Law enforcement officers, including investigators and chemists from the Hopkinton and/or State Police, were involved in collection of evidence including both physical and biological evidence from various locations including 6 Cubs Path and a BMW automobile found parked at Logan Airport.
The Commonwealth conducted DNA analysis and DNA comparison analysis with respect to various items seized during its investigation including, but not limited to: a .22 caliber revolver, blood samples from Rachel Entwistle and Lillian Entwistle, and a water bottle taken from the BMW automobile.
The Commonwealth, at various times, asserted a match between Mr. Entwistle’s DNA and certain crime scene evidence using the following identical language: “A forensic examination of a .22 caliber revolver ... revealed that DNA matching Neil Entwistle was found on the grip of the firearm.”
This unreliable assertion appears repeatedly in Commonwealth documents including:
1. Request for provisional arrest warrant. [exhibit p.1]
2. Further statement of Facts In Support of Extradition Request. [exhibit p.2]
3. February 8, 2006 Hopkinton Police Sergeant Joseph Bennet affidavit in support of application for criminal complaint submitted for both complaint and arrest warrant. [exhibit p.3]
4. March 29, 2006 DNA-STR Report of Department of State Police Crime. Laboratory Analyst Laura Bryant: “The DNA profile obtained from the swab of revolver – R52151 – gripped area of handle is a mixture of DNA from at least two individuals. Neil Entwistle … matched the major male profile in this DNA mixture. The DNA profile obtained from the swab of revolver – R52151 – barrel is a mixture of DNA from at least two individuals…. Neil Entwistle is included as a potential contributor of the minor profile in this mixture.” [exhibit p.4]
5. March , 2006 Commonwealth’s statement of the case filed in this court. [exhibit p.5]
6. September , 2006 Massachusetts State Trooper Michael Banks affidavit submitted in support of Commonwealth’s motion for buccal swab. [exhibit p.6-8]
The Commonwealth has disseminated unreliable information regarding Mr. Entwistle. By the standards asserted by its own chemist, Gwen Pino, the Commonwealth has not obtained any reliable DNA analysis regarding any comparison testing regarding Mr. Entwistle. Nonetheless, the Commonwealth has asserted the existence of a match between Mr. Entwistle’s DNA and certain physical evidence collected in its investigation including the purported murder weapon. By any standard, such assertions are irresponsible; by constitutional standards, such assertions have violated Mr. Entwistle’s due process rights requiring dismissal of this indictment.
The Commonwealth’s assertion of this DNA match was widely reported by the media following Mr. Entwistle’s arraignment. More than twenty reports of the unreliable DNA results appeared in newspapers, magazines, television and the internet, including:
1. February 10, 2006: Nancy Grace, CNN. [exhibit p.9]
2. February 10, 2006: Fox on the Record with Greta Van Susteren, Fox News Network. [exhibit p.10]
3. February 10, 2006: The Big Story with John Gibson, Fox News Network. [exhibit p.11]
4. February 10, 2006: “Affidavit released,” 7 News Boston online. [exhibit p.12]
5. February 11, 2006: “Entwistle told police he found his family slain; Agrees to return to Mass.,“ The Boston Globe. [exhibit p.13]
6. February 11, 2006: “Affidavit reveals Entwistle’s story and DNA evidence,” CBS4 Boston online. [exhibit p.14]
7. February 11, 2006: “Entwistle murders: Neil’s coming back; Sex problems eyed in case,” The Boston Herald. [exhibit p.15]
8. February 11, 2006: “Entwistle murders: Neil’s coming back; Experts split on defense tactics, The Boston Herald. [exhibit p.16]
9. February 11, 2006: “Entwistle murders; The affidavit: Police sought a warrant based on information in it,” The Patriot Ledger. [exhibit p.17]
10. February 12, 2006: “Entwistle prosecution may center on gun tests,” The Boston Globe. [exhibit p.18]
11. February 14, 2006: “Suspect explored killing on web, affidavit declares,” The Boston Globe. [exhibit p.19]
12. February 14, 2006: Nancy Grace, CNN. [exhibit p.20]
13. February 14, 2006: The Big Story with John Gibson, Fox News Network. [exhibit p.21]
14. February 14, 2006: The Abrams Report, MSNBC. [exhibit p.22]
15. February 14, 2006: “Entwistle computer gives up secrets. Documents: Suspect researched killing methods, sought escorts,” CNN online. [exhibit p.23]
16. February 15, 2006: “Entwistle publicity seen as a fairness issue,” The Boston Globe. [exhibit p.24]
17. February 15, 2006: “Inconsistencies in Entwistle’s accounts?” The Early Show online, CBS. [exhibit p.25]
18. February 16, 2006: “Entwistle pleads not guilty to killing wife, baby. Briton held without bail,” CNN online. [exhibit p.26]
19. February 17, 2006: “A silent Entwistle is held without bail,: The Boston Globe. [exhibit p.27]
20. February 24, 2006: “Entwistle defense hires private investigator, CBS4 Boston online. [exhibit p.28]
21. February 27, 2006: Cops: The husband did it; Saying they’ve got the gun, DNA evidence and a motive, police nab Neil Entwistle for the brutal murder of his wife, Rachel, and 9-month-old daughter Lillian,” People. [exhibit p.29]
22. March 29, 2006: “Slay probe moves to Moves to UK; Troopers sought clues in England.” The Boston Herald, [exhibit p.30]
23. September 27, 2006: “The sting of sealing documents,” Joe Dwinell blog on TownOnLine.com. [exhibit p. 31]
The Commonwealth now seeks to avoid being bound by unreliable DNA evidentiary conclusions, and its own reporting of these unreliable results, by initiating a new round of forensic DNA comparison analysis with a controlled sample obtained from Mr. Entwistle. This Court should deny this request.
Further, this Court should conclude that the repeated dissemination of the now recognized unreliable DNA conclusions denies Mr. Entwistle his basic and fundamental constitutional right to due process of law.
In his concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) Justice Felix Frankfurter eloquently defines due process: “Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, ‘due process’ cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, ‘due process’ is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess.” Id. at 162.
The Due Process Clause protects “certain immutable principles of justice which inhere in the very idea of free government.” Holden v. Hardy, 169 U.S. 366, 389 (1898). Mr. Entwistle’s right to be free from national publication of admittedly unreliable DNA conclusions disseminated by the Commonwealth is one such immutable principle of justice.
To determine whether the denial of this right deserves Constitutional protection, the court must determine whether the right is “of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. ‘” Powell v. Alabama, 287 U.S. 45, 67 (1932), quoting Herbert v. Louisiana, 272 U.S. 312, 316 (1926).
The denial of Mr. Entwistle’s right to be free from the dissemination of unreliable information does indeed violate a fundamental principle of liberty which lies at the base of our criminal justice system. It is a fundamental principle of our criminal justice system that the government can only use reliable evidence against a person accused of crime. It is also a fundamental principle that the accused not be impermissibly prejudiced by the government’s dissemination of unreliable information. Both of these principles were violated when the Commonwealth’s unreliable assertion of a DNA match was so widely disseminated by local and national media. Mr. Entwistle’s constitutional right to due process of law has been violated.
Further, as to evidence, the Supreme Court has held, “The aim of the requirement of due process is not to exclude presuptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U.S. 219, 236 (1941). Due process thus demands that the fundamental unfairness created by the dissemination of unreliable DNA conclusions must be prevented by the dismissal of this indictment.
In the event the Court allows the Commonwealth to proceed notwithstanding its irresponsible dissemination of unreliable laboratory results, it should do so under the following conditions
1. The Commonwealth should acknowledge and agree that any prior reporting of a DNA match between Mr. Entwistle’s DNA and any physical or biological evidence was unreliable;
2. The Commonwealth will not attempt to take a buccal swab from Mr. Entwistle until he and his counsel have had the opportunity to consult with a qualified expert regarding the proper procedure for the collection of a buccal swab;
3. Mr. Entwistle’s counsel and, at their election, a qualified expert will be present;
4. The Commonwealth will provide defense counsel with the name and qualifications of the person designated to take the buccal swab at least 14 days prior to the dated agreed upon for taking said swab so as to permit, if defense counsel chooses, a pre-swab challenge to the designee’s qualifications;
5. As minimal a sample as necessary shall be taken, so as to cause minimum inconvenience to Mr. Entwistle;
6. No questioning of any kind is to be directed to Mr. Entwistle;
7. The parties shall make a reasonable effort to complete taking the buccal swab within 30 days of the date of the order of the court
NEIL ENTWISTLE
By his attorneys,
Elliot M. Weinstein
BBO #520400
83 Atlantic Avenue
Boston, MA 02110
617-367-9334
Stephanie Page
BBO #387300
CPCS
44 Bromfield Street
Boston, MA 02108
617-482-6212