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Au Pair Appeals Face Long Odds Judge’s Decision Likely To Stand, But Legal, Medical Debates To Rage On

The legal appeals from both sides in the British au pair case face long odds, say most experts who commented on the case Tuesday.

On Monday, the trial judge reduced Louise Woodward’s conviction to manslaughter and freed her for time served, prompting both sides to say they will keep fighting.

Meanwhile, legal and medical experts continued to debate the outcome of the Massachusetts trial in which the 19-year-old caregiver was accused of killing the 8-month-old boy she was watching.

The decision by Woodward’s attorneys to challenge Judge Hiller Zobel’s manslaughter finding in an attempt to clear her name is a risky move, legal specialists said Tuesday.

A new trial could end with the 19-year-old receiving a longer sentence than the 279 days “time served” she received from Zobel.

But prosecutors who brought the case also plan to appeal. They say Zobel “abused his discretion” when he sliced the jury’s second-degree murder verdict to involuntary manslaughter and freed Woodward on Monday after she had served about nine months in prison for the death of Matthew Eappen.

Several lawyers said Tuesday that both appeals probably are doomed to fail.

“This case is essentially over,” said Boston attorney Roderick MacLeish. “And Louise Woodward, when the appeals are done, will be able to leave this country and go back to her home. Some people may not like that, but it’s the truth.”

As she has since her arraignment for first-degree murder, Woodward maintains she did nothing to harm Matthew, and her attorneys have vowed to prove it on appeal.

“I am enormously relieved that Judge Zobel has seen fit to give me back my liberty,” Woodward said in a statement released through her lawyers Tuesday. “My relief at being free does not reduce my desire to obtain total vindication in a case where, as I have said under oath, I committed no crime whatsoever. I did not harm, much less kill, Matthew Eappen.”

Woodward had faced life in prison with a minimum 15 years to serve after a jury convicted her of second-degree murder.

Prosecutors say she inflicted fatal head wounds when she violently shook and slammed the baby in a fit of rage on Feb 4. But Woodward’s lawyers say the brain injuries were perhaps three weeks old, and began to bleed again that day, probably when the baby was jarred slightly.

Woodward told the jury she did nothing to harm the child and called 911 when she found him unconscious in his crib.

To prevail on appeal, prosecutors must show that Zobel abused his discretion by ruling in a way that no other conscientious judge would. That, attorneys say, will be difficult to prove - if not impossible.

Usually, appellate courts give trial judges wide latitude in the use of their discretion, and it’s rare for one to find that a judge has abused that power.

Still, if the prosecution wins its appeal, the jury’s second-degree murder verdict - and the mandatory life sentence that went with it - could be reinstated.

Appellate lawyer Elizabeth Lunt and several other legal experts speculated Tuesday that prosecutors would not have planned an appeal if Zobel had imposed a stiffer sentence for manslaughter.

District Attorney Thomas Reilly said Tuesday that it was clear that Zobel believed Woodward had lied to him, and to the jury. He said he expected Zobel to follow a proposed sentencing guideline that would require Woodward to serve at least three to five years in prison.

“She thumbed her nose at the Eappens, she thumbed her nose to the jury, and to the judge, and then she walked out of court,” Reilly said.

Gerard Leone Jr., a lead prosecutor in the case, said his team will decide within a few days whether to ask the state Appeals Court to grant an emergency stay of Zobel’s order. Such a move, if successful, would send Woodward back behind bars during the appeals process.

A request for an emergency stay could be heard quickly by the Appeals Court, but a full appeal could take up to two years to resolve.

Meanwhile, Woodward’s defense team will attempt to persuade the appellate court to order an acquittal or a new trial for Woodward. Their arguments will hinge on several factors, including the fact that photographs of Matthew Eappen’s skull fracture were not produced prior to trial, and that Zobel denied the jury’s request to review the testimony of a key defense expert witness.

At the time, Zobel said he denied the request because it would have taken too long to transcribe the testimony. The expert spent two days on the witness stand.

Both of those arguments, if successful, could result in a new trial, an outcome that would place the freed Woodward at risk of being returned to custody.

Lunt said that none of the issues raised so far by the defense “looks like a clear winner.” If an appeal results in a new trial on the manslaughter charge and a second jury convicts Woodward, she said, a different judge “might not be as generous in sentencing.”

To defense lawyer MacLeish, it is hard to understand how Woodward could benefit from an appeal “unless she is just so determined to exonerate her name and get a not-guilty that she is prepared to take risks.

“There have been a lot of risks in this case already,” he said, “and some of them didn’t work out too well.”

One of Woodward’s attorneys, Elaine Whitfield Sharp, vowed the defense team will vindicate Woodward through an appeal - based largely on scientific evidence that the baby’s head wounds were old.

But medical experts from around the country disputed the defense’s scientific evidence.

In a public letter released Tuesday by the Massachusetts Society for the Prevention of the Cruelty to Children, 49 pediatricians said, “The prosecution put forward well established medical evidence that overwhelmingly supported a violent shaking/impact episode on the day in question, when Matthew was in the sole custody of Ms. Woodward.”

“The shaken baby syndrome,” the letter said, “is now a well-characterized clinical and pathological entity with diagnostic features virtually unique to this type of injury” - swelling of the brain, bleeding within the head and bleeding in the interior linings of the eyes.

Woodward’s lawyers accused the prosecution of twisting the medical truth and vowed to pursue further “scientific investigations” that would exonerate her completely, though they would not specify their nature.

One of the defense lawyers, Barry Scheck, suggested that a blue-ribbon panel be appointed to examine the science and possible overdiagnosis of “shaken baby syndrome.”

But that idea was scoffed at by some medical experts, who said the syndrome has been solidly examined clinically and been the topic of perhaps 200 research papers.

“In point of fact, that’s ridiculous,” said Dr. Randell Alexander, a University of Iowa pediatrics professor who is one of the country’s foremost experts on the topic. “Why don’t we appoint a panel to look at strep throat?”

Judge Zobel appeared to buy the defense’s argument, when he wrote that he believed Woodward had become rough with the baby, and “the roughness was sufficient to start (or restart) a bleeding that escalated fatally.”

The question of whether the baby’s bleeding “restarted” was a critical point of the defense.

But pediatric experts on child abuse unconnected with the Woodward trial said Tuesday that everything known about children’s injuries did not gibe with such a picture.

Dr. Jan Bays, chairwoman of the American Academy of Pediatrics’ Committee on Child Abuse and Neglect, said she the case appeared to involve “a classic history” of shaken baby syndrome.

Bays said that when a child, like Matthew, has trouble breathing, is bleeding in its brain and eyes and has a fractured skull, “these injuries are definitely not caused by a three- to five-foot fall off a counter or being dropped out of Mom’s arms. It’s violent shaking.

Furthermore, she and others said, it was impossible that Matthew Eappen could have incurred a severe brain injury three weeks before Feb. 4 and continued to function more or less normally.

MEMO: This sidebar appeared with the story: AU PAIR’S COMMENTS The full text of Louise Woodward’s comments are available on The Spokesman-Review’s Web site. Point your browser to www.virtuallynw.com.

This sidebar appeared with the story: AU PAIR’S COMMENTS The full text of Louise Woodward’s comments are available on The Spokesman-Review’s Web site. Point your browser to www.virtuallynw.com.


 
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