November 4, 1997 in Nation/World

‘A Rare Judge’ Lawyers Say Hiller Zobel Will Do What He Thinks Is Right In The Au Pair Case

Leslie Miller Associated Press
 

The judge who holds the fate of British au pair Louise Woodward in his hands has been a critic of juries in the past and is known as one of the few jurists in the state willing to overturn a jury’s verdict.

Judge Hiller B. Zobel, 65, will hear arguments today on a defense motion to reduce or throw out the jury verdict in the case of Woodward, convicted last week of the second-degree murder of Matthew Eappen, an 8-month-old infant in her care.

“If there is anybody on the Superior Court bench who would be inclined to do it, it would be him,” said Oliver Mitchell, a trial lawyer who has appeared before Zobel. “This is a rare and peculiar judge who does what he believes is right.”

On Monday, Woodward’s lawyers urged Zobel to let her go free, or reduce her conviction to manslaughter.

Prosecutors opposed any change, saying the second-degree murder verdict was proper.

Attorneys have described the bow-tied judge as witty, tough, a bit eccentric and indifferent to what people think of him.

In 1984, Zobel overturned the jury verdict and ordered a new trial in the case of Philip Gagliardi, a Medford, Mass., police officer accused of murdering a friend.

J. Albert Johnson, who represented a witness in the Gagliardi case, said Zobel’s ruling at that time was not based on what the prosecution had done or failed to do. “Rather his focus was on the sole issue of whether justice may not have been done for whatever reason.”

In the motions filed Monday, the defense quoted from several cases, including the Gagliardi decision. Quoting Zobel’s opinion in that case, they said: “If the judge’s conscience is not left with the clear and settled conviction that justice has been done, he must set the verdict aside.”

The defense team also said evidence presented in court during Woodward’s trial failed to establish that the boy’s skull was cracked on Feb. 4, the day prosecutors say she shook and slammed him in a fit of rage driven by her frustration with the job.

The prosecution told the judge in their new court papers that the conviction “was supported by the weight of the evidence.”

Overturning a jury verdict is rare, but not unheard of in Massachusetts, said Randy Chapman, former chairman of the criminal justice section of the Massachusetts Bar Association.

“(Zobel) is probably more down-the-middle that way,” Chapman said. “If he thinks it’s appropriate, he does it. If not, he doesn’t.”

Public pressure mounted Monday for Zobel to give Woodward relief from her mandatory life sentence without parole eligibility for 15 years. A manslaughter verdict would mean a sentence of up to 20 years. With time served, it’s possible Woodward could be released from prison immediately.

Nearly 100 protesters hoping to influence the judge marched outside the courthouse chanting “Free Louise.” Phone lines to Zobel’s courtroom were rerouted to the courthouse’s main switchboard after they became overloaded by more than 8,000 calls.

Zobel earned his law degree from Harvard in 1959 and did postgraduate work at Oxford University.

The author of several books and many articles on law and legal history, Zobel criticized the jury system in an article he wrote for American Heritage magazine in 1995.

“We expect average, untrained people to absorb evidence for days and weeks on subjects entirely foreign to them without explanation, clarification, or even the opportunity to take notes or ask questions,” Zobel wrote.

Johnson said Zobel has both defended and attacked the jury system. “He has been critical of it for its lapses, but strongly supportive of it as a system of justice which has no equal,” he said.

Zobel taught at Boston College Law School from 1967 to 1979, when he was made a judge.

“He fancies himself an expert in the law because he came to the bench from academia,” said Willie Davis, a Boston attorney.

Some attorneys admire his scholarly approach.

“You take your time to be prepared,” Mitchell said. “He’s tough, he’s demanding, but he appreciates the scholarship and the advocacy that results from hard work.”

“I think that man loved watching this trial,” Mitchell said. ” This is a very good display of how the system operates.”


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