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From pretrial hearing, October 5, 2006
JL: Ok, I have Commonwealth's motion for authorization to conduct exhaustive testing. I have Commonwealth's motion for order for taking of buccal swab from the defendant; I have supporting memorandum and other material. And I have the defendant's motion to dismiss indictment and opposition to Commonwealth's motion for taking buccal swabbing. Let me ask first, what we're going to do about the motion to dismiss which I didn’t know was going to be on for today -- I'm not sure it is on for today. Mr. Fabbri are you prepared to argue the motion.
MF: I'm prepared to address it briefly -- I received it just yesterday. But I can address it at least insomuch as we can tie it into the motion for buccal swabbing and exhaustive testing. But to the extent that your honor may want additional filings or pleadings or information, I would like the opportunity to file a response, if the court deems that necessary.
JL: Mr. Weinstein, are you--do you want to argue this motion today or shall we set this for another time, or--
EW: I think its fair for argument today. It is the essence of our -- it is one-half of the essence of our opposition to the Commonwealth’s motion for buccal swab. And really it is their motion which caused me to look into the true history and dissemination of information which is the basis for seeking that this indictment be dismissed.
JL: I certainly would give the Commonwealth additional time to file an opposition and response. It appears from a quick reading of the motion, Mr. Weinstein, that some form of evidentiary hearing may be required. Unless the Commonwealth stipulates to the facts that you've set forth, or alleged at least in your motion. I don't know if they will or not --
EW: They might, because the assertions in the motion to dismiss, are from the record of events, from pleadings and submissions from the Commonwealth, and the other matters are matters that were generated and disseminated by the media for which I've attached various excerpts of media reporting.
JL: To be more precise: the submissions are from such items such as "Fox On the Record with Greta van Sustern"--
EW: I gave, I think, twenty plus examples--
JL: And your assuming what they say in the news media is true?
EW: I'm assuming that what they say is what they said, and what they said reflects what was gathered by them in their information gathering process from the Commonwealth sources of information -- specific affidavits, Commonwealth's statement of the case.
JL: Well, we can perhaps test whether what they said is what’s reported. I'm not sure we can test the other half of your equation without inviting some of our news people on the witness stand to see if what they reported accurately reflects what they’ve learned. At least in my experience, the media hasn't always been 100% accurate, so maybe we --
EW: Well no, far from it, and that’s really what this is all about. They're not always accurate, but --
JL: You're relying on their inaccuracy, though.
EW: No, I'm relying on the facts of what they've reported. And the facts happen to mirror the assertions of the Commonwealth. Specifically, that the Commonwealth had a DNA match from Mr. Entwistle. And that's really what this is all about. The Commonwealth from way back, in the early stages of this case, was asserting that they had a DNA match of Mr. Entwistle. Now, if we want to go into it right now ---
JL: No, what I'd like to do is let's move forward on the motions. If, either during or at the end of the argument, it appears that we should have additional hearing on the motion to dismiss, we can set one up--
EW: That's fine.
JL: -- and decide what the nature of the hearing should be. I just raise the concern. First one filed was the Commonwealth's motion, so why don't we begin with the Commonwealth's motions for exhaustive testing and taking of a buccal swab. Mr. Fabbri?
MF: Your honor, if I could start with the taking of the buccal swab first please.
EW: Do you have the originals there?
MF: In effect they go hand in hand, as to the extent that the motion is allowed and the Commonwealth is allowed to proceed with testing. The second motion, the authorization to conduct exhaustive testing–essentially is permission to do the exhaustive testing within certain parameters that do protect the defendant’s right of access to that information, to the testing, the procedures, etc. So I would suggest that if your honor were inclined to allow the first motion, then the second motion, I think is alot easier. And indeed, I saw no opposition at all to the second motion -- the motion for exhaustive testing. And I would suspect that there wouldn’t be any opposition -- maybe some further suggestion of the parameters set down in terms of the timing, who has access, etc.
As for the motion for the buccal swab, the Commonwealth has submitted two affidavits. One from one of the troopers involved in the case, another one from a chemist at the crime lab. As you know the case law simply requires two things: that probable cause be established among the pleadings, among other papers available to the court and certainly the court can consider representations of counsel made in court. The first prong is that the Commonwealth needs to establish probable cause to believe that the defendant has committed a crime. In the recent case of Commonwealth vs. Draheim, which I believe I've cited in my motion and memo, make it clear that that particular prong of the motion for the buccal swab is satisfied by the mere fact of the indictment. I would add that in addition to the indictment, the statement of the case and the affidavit of the trooper--Trooper Michael Banks-- clearly established beyond any doubt, not simply probable cause, that the defendant has committed a crime. At least for the purposes of Commonwealth v. Trigones, which is the foundation of this hearing.
The second prong that we need to satisfy is that the taking of the buccal swab will, quote, probably provide relevant evidence of the defendant's guilt. Two reasons we set forth in the papers and the supporting affidavits. One is to conduct further testing. As you can see from the motion for exhaustive testing, there are a number of other pieces of evidence from which swabs were taken that potentially contain DNA evidence-- in particular: ammo boxes, gun boxes, keylocks, etc., that are associated with the firearm or firearms in this particular case. So that information establishes that there are other tests to be conducted. The taking of buccal swab, when you consider the affidavit of both the trooper and the chemist, makes it clear that-- at this stage, to allow the Commonwealth to proceed and conduct further tests on those items that have not been tested. Comparing both the profiles-- the DNA profiles of both victims in this case -- Lillian Entwistle and Rachel Entwistle together with the defendant's anticipated DNA sample from the buccal swab. Those analyses would clearly establish that -- the results of those comparisons are going to provide evidence of the guilt or innocence of the defendant in this particular case.
The second reason, as articulated in the affidavit of trooper-- Trooper Banks, goes to the Commonwealth’s desire to get Mr. Entwistle's DNA sample directly from him -- from either a technician, or a trooper; somebody certified to take the buccal swab, so we can establish beyond any question that the sample that we used to compare, both to the items that we've already tested as well as any additional items that are to be tested, to establish beyond any doubt or any question that the sample and that profile came from directly from the buccal swab of the cheek cells of Mr. Entwistle.
If I'm beginning to get into the Motion to Dismiss, please cut me off, your honor. But I --
JL: Let me ask you to look at page 8 of the defendant's opposition and motion to dismiss, in which it -- either he or they -- identify a number of conditions, if the court should allow the buccal swab-- they've identified a number of conditions they would like to have the court impose and setting aside , I think, the first condition which I think is essentially the motion to dismiss. Conditions 2 thru 7. If you had a chance to look at them, do any of those pose an objection-- or do any of those--
MF: I have looked at them, your honor, I do not believe they pose any objection. I think essentially that they mirror the recommendations that we typically-- the Commonwealth typically requests. The only concern would be #2 and only to the extent that it causes a delay. But that, if you read it in conjunction with #7 which talks about this being done in 30 days, I don't think #2 is unreasonable. But the other ones, #3, #4, 5, 6; I believe we propose in our papers in any event. So other than #1 and other than the caveat that we wouldn’t want the defendant's request to consult to delay the proceeding, we have no problems whatsoever.
As to the second portion, much has been made in the defendant's motion to dismiss about the Commonwealth purportedly relying upon unreliable tests previous to this date. And I will simply say this your honor, first all for investigative purposes, the need to proceed with information is-- the standard imposed is certainly lesser. Again, probable cause is the standard to arrest, to indict. Law enforcement typically relies on information that’s deemed reliable and reasonable notwithstanding the fact that it might not be admissible in court. Here, and its clear from the papers in discovery provided to counsel to date that the alternate standard which is referenced in the Commonwealth's papers, but not, I believe in the defendants papers. The alternate source is take from a couple of sources. And that alternate standard -- Mr. Entwistle -- was determined to as follows. The crime lab had the DNA profile of Lillian Entwistle. The crime lab had the DNA profile of Rachel Entwistle. We all know biologically, we only have one father, one mother. The crime lab can extrapolate what the DNA profile would be of the father of Lillian Entwistle. That was then compared to a water bottle that was taken from the BMW that was driven and abandoned at the airport. The defendant in statements to police admittedly drove that BMW, abandoned it at the airport. A swab from that water bottle, the DNA profile that water bottle was also seen in surveillance cameras at the airport. The profile of that DNA from the swab of the bottle matches the extrapolated, if you will, DNA profile of the father of Lillian Entwistle. So it was certainly reasonable for law enforcement to rely upon that as a DNA standard. We're simply looking to get a direct standard from him to compare it and also to conduct further tests
JL : Thank you. Who is going to argue -- Mr. Weinstein?
EW: Let's take the easy motion first.
JL: I'm sorry--I didn’t hear you?
EW: Let's take the easier motion first, and that is--
JL: Which one is that?
EW: --with respect to exhaustive testing and that is really -- wasn't a need for an opposition. The Commonwealth and I have talked. We do wish to have a qualified scientist present when the testing is done by the state then that's what we'll do.
JL: Have you seen the order proposed by the Commonwealth on this issue?
EW: I have.
JL: And do you have any objections to the orders in terms of it's statement that the Massachusetts State Police Crime Lab be permitted to conduct exhaustive testing on the samples in question, provided that an expert for the defendant be present, or the defendant waives the expert's presence. Is that language acceptable under -- as far as exhaustive testing is concerned?
EW: Yes. And we -- and we do intend to have somebody present. We will not waive that opportunity.
JL: Ok, then that's fine. I prob..-- I would propose then to sign that order with respect to exhaustive testing But let's move on to the other motion.
EW: The Commonwealth wants permission from this court to take a buccal swab from Mr. Entwistle. Commonwealth has several choices. It can tell you that it already has sufficient and reliable evidence to proceed to trial. They've almost said that, but not quite. Because if they have what they say they have, just said to you moments ago, from this water bottle, and all of the uncertainty that that from the Commonwealth's point of view, portends, then there is no necessity. There is absolutely no need for further testing or taking any biological sample from Mr. Entwistle.
JL: So you will stipulate that the DNA they already have is that of Mr. Entwistle?
EW: I won't stipulate to that at all. That's for them to prove. And that's exactly the point. Because they've said all along that it came from Mr. Entwistle. And therefore that's the basis of the Commonwealth's assertions consistently during the pendency of this case, that they have a DNA match. Well, what they really have is assertions of match. And they have an attested to affidavit from the head of the State Police Crime Laboratory, Gwen Pino, that the only reliable way for DNA matching is to take a known biological sample from the person. It follows then, that the Commonwealth has been reporting to the court, whoever is listening to the Commonwealth's position, that what they have is not reliable test results. If they want proceed with buccal swab then the Commonwealth should stand forward and say it has been relying upon information, which now having consulting with its head chemist, it knows to be not reliable. And that the reason that they are now seeking this invasive process.
JL: What if the results are the same?
EW: What if they are?
JL: Then it does suggest that the earlier information was reliable rather than not reliable.
EW: Perhaps it does not.
JL: Ok. Tell me why.
EW: That’s what trial is going to be about. I’m not going to, not going to set forth at this hearing the basis of the trial defense with respect to that scientific evidence until I’ve had the opportunity to see exactly what they’ve done, how they’ve done it, and then we’ll be able to focus on the specifics that will be presented to a trial jury which will cause it to doubt the conclusions that the Commonwealth is asking this jury to make. And that’s if we get that far.
So, what the starting point really is, is that they have something, they’ve tested it, they’ve analyzed it, they’ve done comparison analysis, and they’ve reported out their conclusions. Now that should be enough for the Commonwealth, or the Commonwealth --
JL: For trial, or for getting the case goring?
EW: For any purpose. Because – because when the Commonwealth’s chemist says the only reliable evidence is if we start from a known specimen from an individual, then the Commonwealth can go forward seeking that. And I wouldn’t object to your allowing it under two conditions: 1, that the Commonwealth agree that what it has relied upon heretofore is not reliable evidence, and 2, if and only if you conclude that the conduct of the Commonwealth has not impermissibly violated Mr. Entwistle’s 5th, 6th amendments to fair trial and due process of law. And that is really the focus of the argument in opposition to the taking, sounded in the language of dismissal of the indictment for constitutional violation
JL: Kind of a sanction motion?
EW: It is kind of a sanction motion. It is the court which has to do something when the fundamental fairness has been violated by the conduct of the Commonwealth.
JL: And what fundamental fairness has been violated?
EW: To put forth unreliable test results in affidavits, in statements of the case, in affidavits in support of search warrants, in reporting from the office of the District Attorney, and in submission to this court in its own statement of the case that there is a DNA match. Now, what’s wrong with saying that? What’s wrong is the affirmation, the statement under oath of Gwen Pino who says the only reliable method is to take a DNA sample from an individual. Didn’t do that, and yet they have been putting forth positions using the language of DNA match, which is never even the language of the courtroom and science. But they’re using the language of match. And that’s wrong.
JL: My understanding is that the search warrant and application and affidavit, to the extent that it may rely on unreliable evidence can be tested on a motion to suppress. Are you suggesting that you don’t want to do that; you want to dismiss the whole thing?
EW: What I’m saying is, this motion presents to you the constitutional claim that arises from the Commonwealth’s request for taking this DNA sample from Mr. Entwistle. Because its presented by the Commonwealth to you now, and because, when scrutinizing the reasons they want to go in this fashion, we uncover and then present to the court the unreliable dissemination of information, or stated more correctly, the dissemination of unreliable information by the Commonwealth, we conclude that that is a direct and significant violation of Mr. Entwistle’s 5th and 6th amendment right to due process of law and to fair trial. And the remedy that is available to the court now is dismissal.
JL: How do we test the unreliability?
EW: You look to the statement of Gwen Pino in the affidavit that she submitted to the Commonwealth and the Commonwealth submitted to you in its motion in the first instance. You look at it. She says the only reliable way. You conclude that what they have done is not reliable. If the only reliable way is with what Pino wants to do, then everything else is not reliable. And that’s your answer.
JL: What if Pino wants to do produces results that are identical to what was identified earlier? That makes the earlier results reliable?
EW: Far from it. It means she is using methodology which has been devised to mirror the results which they have already obtained and which we now know are not reliable. Its that simple. You know, there is the science of expected results and that is something that I would anticipate is going to be operative in this testing. If you think its going to be something, its not so hard to make sure that it turns out to be something.
JL: That’s also subject to any testing that your own expert might do that might contradict or undermine whatever the lab does by way of its testing.
EW: It might be.
JL: So you have an opportunity at least to test the reliability even of the current testing.
EW: The burden of proof in this case is never going to come to my table.
JL: I’m not talking about burden of proof. I’m not even talking about trial. I’m talking about where we are at this stage of litigation.
EW: Well, then we can stop right there. Where we are right now is, I shouldn’t be shouldered with the responsibility of testing anything. The Commonwealth has asked permission from this court to do something. I’ve given you very specific and constitutionally based reasons why that request of the Commonwealth should not be honored, why their request should be denied. That’s all we are at right now. And I believe that I have given you sufficient reasons in the facts of the case, in the facts of pleadings of the Commonwealth, affidavits of various Commonwealth witnesses to support my assertions. I didn’t make these up. I took everything out of the records of proceedings and affidavits. And that’s enough to show you that there has been the depravation of fundamental fairness.
JL: If were simply to deny the Commonwealth’s right to take a buccal swab, wouldn’t that answer your concern?
EW: If you denied their right [crosstalk] proceed on the state of the evidence as it is.
JL: The only motion before the court is whether the Commonwealth should be allowed to take a buccal swab from your client.
EW Right, if you deny that – we proceed on.
JL: If I deny that -- then whatever exists, exists. That’s different from seeking to dismiss. That’s what I’m trying to understand.
EW: You’ve parsed out two questions to me. If one answer of the court is that your going to deny their right and –
JL: Deny their motion.
EW: – deny their motion to take any further testing, I’m not going to withdraw my request that the indictments be dismissed. What it will mean is the state of evidence available to the Commonwealth is what it is, without any further DNA testing or analysis. I will still press to you that what they have done heretofore, as set forth in my motion, amounts to a denial of fundamental fairness, due process, fair trial rights.
JL: Ok. Thank you. A response, Mr. Fabbri?
MF: Your honor, first of all counsel and I certainly agree that the burden never shifts from my table to his table, and we accept that willingly. And that is essentially the reason why we are asking that this motion be allowed. So that we can accept our burden and we can prove all the necessary facts beyond a reasonable doubt, including the DNA profile of Neil Entwistle. Counsel, I think, takes the statement of Ms. Pino – Chemist Pino -- out of context and I refer you to page 3 of Ms. Pino’s affidavit, which indicates that in order for --
JL: Ms. Pino’s affidavit?
MF: Yes sir, affidavit in support of our motion for buccal. And not to mince words but “in order for DNA analysis to be reliable, a DNA standard sample should be taken directly from a suspect or defendant in accordance with policy guidelines”. To the extent that the Commonwealth has in this case, and does in any other case, make assertions about facts that arise from other facts, that really is a non-issue before the court in terms of this motion for the buccal swab. On a daily basis in the course of enforcing criminal law and bringing charges and bringing indictments, law enforcement, the Commonwealth and the like, make statements about conclusions at different stages. At this particular stage of this case, the Commonwealth need only establish, at arrest stage and indictment stage, proof beyond a reasonable doubt. We need to arrive at --
JL: Can you say that again?
MF: Excuse me, probable cause. Probable cause is the burden at this particular stage.
JL: Almost had him Mr. Weinstein.
MF: Almost had me. In any event, I think the evidence that the Commonwealth has submitted for this court and has relied upon in making the assertions that it has to date has been fair and reasonable. No different than police officer on an affidavit stating that he observed a drug deal, when he observed a certain activity. No different than a prosecutor making a statement in a statement of the case filed with the court that the firearm was recovered when the information at that stage is reliable and assertions based on that information is reasonable. That, I submit, was done though the entire course of the investigation in this case up to and including the present time. We would urge you to deny the motion to dismiss and allow the motion for the taking of buccal swab. And also it sounds if we have the assent of the defendant in terms of the exhaustive testing. I terms of the underlying issue here the defendant has not contested that we have not met the Trigones standard; has not contested, and I believe we have proved that the buccal swab will produce evidence relevant to the guilt of the defendant. And balancing the factors of the need to take that test against a minor intrusion of doing a Q-tip swab on the inside of the defendant’s cheek, I would urge you to allow the both motions and deny the defense motion to dismiss.
JL: Mr Weinstein anything further on these motions?
EW: No.
JL: Ok. I’ll take these three motions: the two Commonwealth’s motions and the defendant’s motion to dismiss under advisement.