Cape & Islands News

High priced jury consultant helps Toolan

Special to CCToday by Mary Lancaster of the Nantucket Independent

Day two of jury selection in Nantucket murder trial
Marshall Hennington helped the defense cull the 12 jurors from a jury pool

Defense attorney files another motion to change venue Monday's Superior Court proceedings marked the onset of jury selection in the trial for Thomas Toolan, III, 39, who is alleged to have murdered Elizabeth "Beth" Lochtefeld on Oct. 25, 2004. The first jury pool had to wait, however, as Judge Richard F. Connon heard Toolan's Brockton attorney Kevin Reddington's second motion to change the venue for the case.

Thomas Toolan, center, is escorted into the Nantucket Superior Courthouse by Nantucket County Sheriff Richard Bretschneider, left, and Captain Jim Gray, Nantucket County Sheriff's transportation officer.As he did in his first venue motion last year, Reddington primarily cited the ongoing publicity about the case he believes has tainted impartiality. Prior to initial questioning of the first pool, Judge Connon said that the defense may challenge 16 jurors for no specific reason and as many others as it can show cause to challenge in being on the panel.

This allowance may bode well for Reddington because, of the pool of 77 potential jurors brought in Monday, 53 were excused and 24 remained. Yesterday, of a total pool of 65 jurors, only 19 were not excused. The pools were read a long witness list and asked if they knew anyone on it, or if what they have read of the case has influenced them to a point that they cannot serve without bias.

They were also told that if a trial begins here, it may last two and a-half weeks and to consider financial hardship. At the end of the afternoon on Monday, Judge Connon told the press that the major obstacle potential jurors that day said they had to overcome was publicity about the case. Today, the last pool approved by the jury commissioner for this session is coming in, but was expected to number less than 40.

List of media stories named 

"There has been a nationwide blitz of publicity and it hasn't let up," Reddingtonn During the motion hearing Monday, Reddington named hundreds of articles that have been written about the case, including in People and Vanity Fair magazines, along with various newspapers. He specifically noted that last week The Nantucket Independent, its local competitor and The Cape Cod Times all ran front page stories with detailed recounts of the alleged murder events and claims against his client. He also listed a Web site for Ms. Lochtefeld that many have logged onto, her and her family's community ties he feels will make it difficult to obtain a just trial on the island and a book called "Safe Harbor: A Murder in Nantucket" that has been sold at Cape and Islands stores.

"There has been a nationwide blitz of publicity and it hasn't let up," Reddington argued. "How would any juror be able to truly be objective in this case?"

He also called the publicity "pervasive, relentless and highly inflammatory" and maintained that he was not just arguing Massachusetts law, he was arguing federal law in his client's protection of rights.

"Clearly, we are flirting with this trial being a hollow formality," he said. Referring to Nantucket as a "hostile and uncomfortable environment," added, "In this case it's a fishbowl and clearly there have been inflammatory articles...Pull the plug on this case right now and send this case to the mainland. To do otherwise would be to stick our heads in the sand."

Prosecutor says publicity had no effect , jurors return

Prosecutor Brian Glenny was brief in his retort, only saying that there has been no evidence that publicity has negatively affected the jury pool and that the court should proceed with discovering what jurors themselves say about their impartiality in the case.

The first 24 jurors who may serve were brought back yesterday afternoon for individual questioning in the judge's chambers and were excused for the rest of the day after being told to call the court today to find out if they have been excused or need to return. Tuesday's pool of jurors was told to return to the court at 11 a.m. today for their individual questioning. Depending on the outcome of today's questioning, the judge may rule on Reddington's motion this afternoon. Judge Connon also told the press that today he will release the specific questions asked in his chambers, including the juror's responses.

In brief, Ms. Lochtefeld and Toolan met on Nantucket in the early summer of 2004, but after dating briefly she decided to end the relationship and traveled to Manhattan, where he maintained an apartment, to tell him her decision during the third week of October. The government's case involves proving beyond a reasonable doubt that Toolan was upset over the break-up and followed Ms. Lochtefeld, 44, back to Nantucket, bought a knife at a marine supplies store, went to her cottage and fatally stabbed her. He then left Nantucket and was subsequently apprehended that day in Rhode Island and charged with driving under the influence of alcohol and being a fugitive from justice. The Commonwealth seeks a verdict of first-degree murder with life imprisonment.

Reddington intends to defend the case on the basis of diminished capacity/ lack of criminal responsibility, based on the fact that Toolan was involuntarily intoxicated from a mixture of alcohol, prescription and nonprescription drugs, and also based on his emotional state at the time of the offense. If Reddington is successful in that defense, Toolan could receive a reduced verdict of manslaughter which would provide for parole.

The witness list 

The witness list includes potential testimonies from local, New York City and Rhode Island police, Toolan's parents, Ms. Lochtefeld's brothers, Peter and Thomas, her cousin, Eric, Ms. Lochtefeld's landlady, Barbara Kotalac, and others who live or lived on Hawthorne Lane where Ms. Lochtefeld's cottage was located next to her landlady's house. It further includes the keeper of records for Brant Point Marine, where Toolan allegedly bought a knife after flying to the island on Oct. 25, 2004, various airport representatives, rental car representatives, several medical testimonies, representatives from the state crime lab and medical examiner's office, Nantucket Dr. Tim Lepore, who is the island's medical examiner, New York Port Authority representatives and Jim Richard, owner of Parcel Plus, where Ms. Lochtefeld left a package of Toolan's belongings the morning before her murder to be sent to him in Manhattan.

If the trial occurs here, journalists will not be allowed to print juror's names during the trial, and witnesses testifying will be given a gag order not to speak to the press until a verdict is returned.

• See report on Day 1 here.