Defence lawyers for a British au pair convicted of killing an infant in her care argued yesterday that the jury's verdict should be overturned because key prosecution evidence had been presented too late in the trial. Middlesex Judge Hiller Zobel could "not be left with a clear and settled conviction that justice has been done. Not in this case. . .I leave it to your conscience," submitted Mr Barry Scheck, one of the lawyers defending Ms Louise Woodward, at a hearing to consider the guilty verdict against the 19-year-old Briton.
Scores of people, some of them chanting "Free Louise", protested outside the courtroom in support of Woodward, who was sentenced last week to life in prison for the death of eight-month-old Matthew Eappen.
The judge, in a surprising move, is expected to release his decision on the hearing via electronic mail to news organisations for them to post on their Web sites.
Under Massachusetts law, a judge has the power, which is rarely exercised, to overturn the jury's verdict that found Woodward guilty of second-degree murder; order a new trial; reduce the charges to manslaughter or assault, or let the verdict stand. Judge Zobel has modified at least three jury verdicts in his long career on the bench.
Woodward, who was not in the courtroom but was able to see the proceedings on a television in her prison cell, watched as Mr Scheck argued that autopsy photographs disclosed by the prosecution very late in the trial were "powerful exculpatory evidence". Jurors did not have a chance to see the pictures.
The pictures showed the skull fracture that led to the baby's death occurred prior to February 4th, when he was rushed to hospital and could not have been the result of anything Woodward did that day, Mr Scheck said.
The photographs were such a powerful weapon for the defence that if it had been able to use them it might have changed its decision to put Woodward on the witness stand, he said.
Prosecutor Ms Martha Coakley reminded the judge yesterday: "There are safeguards for the defendant along the way. Those safeguards are for the defendant to ask that the jury consider lesser included charges.
"As you said [to the defendant] `You can't come back and say the devil made me do it,' Ms Coakley told the judge. "If the court now says maybe it was manslaughter, you are substituting yourself as the 13th juror."
After defence lawyers sought a lesser sentence on manslaughter, prosecutor Mr Gerard Leone Jr told the judge: "She's the only one that knows what happened on February 4th. Unless and until the defendant places before us another version of the facts, she should not benefit at this time."
Woodward's parents, Susan and Gary, were in the front row of spectators and wore yellow ribbons, a symbol used in the campaign for her release.
At the other end of the row sat Ms Deborah Eappen, the dead baby's mother. She wore a pin made to look like a caterpillar, Matthew's favorite toy. Behind her sat several women who wore small pictures of the dead baby pinned to their clothing.
Woodward's current conviction carries a mandatory life-in-prison sentence with the possibility of parole after 15 years. Manslaughter carries a maximum prison sentence of 20 years, but there is no mandatory minimum.
If Judge Zobel changes the jury's verdict, the prosecution can appeal; if he lets it stand, the defence is expected to appeal.
Court sources said written copies of the judge's ruling, which could come as soon as today, would not be immediately available except to the lawyers who might need them in case of an appeal.