CAMBRIDGE, Mass. — While their client sat in a nearby state prison cell, attorneys for British au pair Louise Woodward told a judge on Tuesday that the jury erred in convicting her of murdering the eight-month-old child who was in her care.
"The evidence [in this case] is more consistent with manslaughter than with second-degree murder," lawyer Harvey Silverglate told Superior Court Judge Hiller Zobel.
But just as forcefully, prosecutors reminded the judge that Woodward's own high-powered defense team opted for the risky, all-or-nothing strategy that restricted jurors either to convicting Woodward of murder in the February death of Matthew Eappen, or of acquitting her.
When Silverglate and defense colleague Barry Scheck urged Zobel during the trial to narrow the charges against the 19-year-old baby-sitter to murder, Assistant Dist. Atty. Martha Coakley said: "You told them not to come back later and say: 'The devil made me do it.' That was what you said. If the court now says, 'I think it should be manslaughter,' you are substituting yourself as a 13th juror."
The exchange took place in an unusual hearing in which Zobel considered a request by Woodward's defense team that the verdict be reduced or overturned. Under Massachusetts law, a judge can take such action in some circumstances where a jury's verdict may be in question. The worldwide outcry that followed Woodward's conviction last week seemed to be gaining momentum as Zobel convened Tuesday's proceedings, with protesters for both sides swarming outside the courthouse, shouting: "Free Louise!" or "Remember Mattie!"
Zobel said his options in the case were to allow the murder verdict to stand, to set it aside and order an acquittal, to order a new trial or to reduce the charge--for example, as Woodward's lawyers are now asking, to manslaughter.
The judge stated that he would issue no decision Tuesday, but rather would release his ruling later this week on Web site http://www.lawyersweekly.com.
With yellow ribbons pinned to their lapels, Woodward's parents and other supporters filled one section of the small courtroom here. On the opposite side of the courtroom, Deborah Eappen headed a contingent of friends and relatives of her late son. The Eappen faction wore pins picturing the child, who died of head injuries.
Prosecutors stuck to their contention Tuesday that the baby died from "shaken impact syndrome" after Woodward violently shook him and slammed him on the floor against a hard object. They maintain that Woodward grew frustrated by the child's crying, and that, as Assistant Dist. Atty. Gerard Leone said Tuesday, "all [his] injuries were highly characteristic of child abuse and shaken impact syndrome."
Woodward's defense lawyers countered that the jury had not been allowed to properly consider "outcome determinative" photographic evidence they said proves the child actually died from an existing head injury.
"There is no question that if the skull fracture were old, there must be a reasonable doubt," said Scheck, waving a color photograph of Matthew's brain tissue.
Prosecutors, stressing once again that Woodward's attorneys insisted that no charge other than murder be considered, rejoined that the disputed autopsy photographs revealed no new information.
If Scheck heatedly hammered away at what he considered dubious details, Silverglate on Tuesday stepped forward with an argument that bordered on legal humility.
The defense decision to push only for a murder trial was made "not out of hubris, but out of an attempt to ameliorate prejudice that we thought we were facing," Silverglate said. As it turned out, he said, prosecutors enjoyed "an unfair tactical advantage" by "overcharging" the case as a murder.
His client "should not be facing a mandatory life sentence," Silverglate said quietly, while acknowledging that "it is possible that Louise Woodward did something mild." But, he argued, "the evidence is more consistent with manslaughter than with second-degree murder."
Making the prosecution's closing point, Leone said Matthew Eappen was a "healthy, normal baby" when his parents left for work on Feb. 4. As for Woodward's insisting that the matter be heard only as a murder case, Leone said: "She made a choice, and now it seems to me that the court has to abide by that verdict."
Prosecutors retain the right to appeal any action Zobel might take.
Mehren is a Times staff writer and Mowbray is a Times special correspondent.