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Au Pair Louise Woodward’s Lawyers Admit Eliminating Manslaughter Charge as an Option May Have

November 4, 1997

Au Pair Louise Woodward’s Lawyers Admit Eliminating Manslaughter Charge as an Option May Have Been a Mistake as They Ask Judge To Change Murder VerdictBy RICHARD LORANT

CAMBRIDGE, Mass. (AP) _ Attorneys for a British au pair convicted of murdering an infant in her care asked a judge today to take the unusual step of overturning or reducing the jury’s verdict or ordering a new trial.

Much of the hearing focused on the defense’s appeal to reduce Louise Woodward’s murder conviction to manslaughter _ an option the defense had eliminated during her trial, leaving the jury to consider only first- or second-degree murder.

The defense admitted that decision now ``can be seen as a mistake.″

Woodward, 19, was convicted Thursday of committing second-degree murder by shaking and slamming 8-month-old Matthew Eappen on Feb. 4.

The prosecution argued that the defense was trying to have it both ways by its strategies of first rejecting manslaughter as a possibility and now asking the judge to consider it, and by insisting the baby’s fatal injury was pre-existing.

``If it works, it’s brilliant,″ prosecutor Martha Coakley said. ``But if part of it doesn’t work ... that whole house of cards falls.″

Middlesex Superior Court Judge Hiller B. Zobel did not say when he would rule on the defense request but said it wouldn’t be today.

Woodward’s parents sat in the front row of the courtroom wearing yellow ribbons symbolizing their demand their daughter be freed. Matthew’s mother also attended the hearing.

Elaborating on written arguments submitted Monday, defense attorney Barry Scheck began today by focusing on autopsy photos he said were unfairly introduced near the end of the trial by the prosecution _ too late, he said, for the defense to question experts about them.

He said the pictures clearly showed tissue growth around the perimeter of the injured area, which could indicate Matthew was injured before Feb. 4, the day Woodward called an emergency number to say the baby was having trouble breathing. The child died five days later.

``If we had had this photo from the very beginning, we would have been able to make a very important ... point,″ Scheck said.

He called it ``unrefuted and overwhelming scientific evidence.″

But the judge interrupted him, saying it was the defense’s decision about what points to make or not to make.

``I’m getting weary of your telling me how much this would have made a difference when you didn’t put it in,″ Zobel said. ``It’s inappropriate that you should now say, `Well, we decided not to put it in, but if we had put it in, this is what we would have done.‴

Prosecutors maintained today that the evidence supported a second-degree murder conviction.

``It is not an issue of second-guessing this jury, it is not an issue of being a 13th juror,″ Coakley said. ``The test is if justice may not have been done, if no reasonable person would have confidence in the verdict.″

The prosecutors argued that the defense, which requested that manslaughter not be presented to the jury as an option, apparently confident that they had proved her innocent of first- or second-degree murder, shouldn’t be allowed to have it both ways.

``It was the defense that demanded that the jury be given only two choices, murder or acquittal,″ prosecutors wrote. ``The defense should not be permitted to proceed with an ‘all-or-nothing strategy,’ sample the jury’s verdict and then elect to move for a reduction to the very charge they opposed.″

Defense attorney Harvey Silverglate admitted today that the decision now ``can be seen as a mistake. It was not made out of hubris. It was made to ameliorate prejudice we thought we were facing″ because of the seriousness of the first-degree murder charge against Woodward.

In hindsight, he said, ``by any definition, the evidence in this case could fit into manslaughter.″

In their motions, prosecutors urged that if the judge did change the verdict to manslaughter, he require Woodward to admit guilt _ preventing her from appealing the decision to a higher court.

A manslaughter verdict would mean a sentence of up to 20 years; with time served, Woodward could be released immediately. The second-degree murder conviction carries a mandatory sentence of life with possibility of parole only after 15 years.

Thursday’s verdict surprised legal observers and generated vigorous debate in the United States and Woodward’s native England about the quality of child care and the justice system.

Meanwhile, newspapers reported today that Woodward’s jurors never got to see a videotape in which Matthew’s mother allegedly tried to coax her surviving son into blaming Woodward for the baby’s death.

The New York Post cited an unidentified police source who said that Deborah Eappen is shown asking her surviving son, Brendan, to say Woodward harmed Matthew, but the 3-year-old boy doesn’t comply.

``He replies along the lines that he loved Louise, Matthew loved Louise and Louise loved them,″ the newspaper quoted the source as saying.

The Express said Eappen interviewed her son at the request of the prosecution and the tape was given to the defense under laws requiring sharing of evidence.

The defense was delighted at how the interview turned out, the newspaper said, but at a pretrial hearing it was decided that the tape would not be shown to jurors. The Post said the judge made that decision, ruling the tape was inconclusive.