COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss.                   SUPERIOR COURT
                                 CRIMINAL NO. 97-0433

COMMONWEALTH

     v.                          MEMORANDUM and ORDER

LOUISE WOODWARD

                            MEMORANDUM

     The law, John Adams told a Massachusetts jury while defend-

ing British citizens on trial for murder, is inflexible, inexora-

ble, and deaf: inexorable to the cries of the defendant; "deaf as

an adder to the clamours of the populace."  His words ring true,

227 years later.  Elected officials may consider popular urging

and sway to public opinion polls.  Judges must follow their oaths

and do their duty, heedless of editorials, letters, telegrams,

picketers, threats, petitions, panelists, and talk shows.  In

this country, we do not administer justice by plebiscite.  A

judge, in short, is a public servant who must follow his con-

science, whether or not he counters the manifest wishes of those

he serves; whether or not his decision seems a surrender to the

prevalent demands.
  
                      1. Pertinent Evidence.

     Reduced to its appropriately bare essentials, this case

turns on diametrically opposed theories of ultimate causation. 

Both sides agreed that Matthew Eappen died from massive intra-

cranial bleeding.  The prosecution's experts attributed the

hemorrhage to a combination of extraordinarily violent shaking

and overpowering contact with a hard flat surface, all occurring

some time on February 4, 1997; the defense experts ascribed the

hemorrhage to a "re-bleed" in a clot formed about three weeks

earlier following a hitherto undetected injury.

     The government buttressed the scientific evidence with

testimony that the baby had been normal earlier in the day; that

Defendant had been the only adult in his presence throughout; and

that she had admitted to police that she had been "a little

rough" with him when putting him on a bed, bathing him, and

placing him on the bathroom floor.

     The defense relied for rejoinder entirely on the testimony

of Defendant herself, who denied handling the child in an inap-

propriately vigorous manner, although she admitted that perhaps

she had "not been as gentle as I might have been" with Matthew. 

     Thus stripped of the jargon-filled overlay with which both

sides filled the record, the issue for the jury's determination

was simply: Did the government prove beyond a reasonable doubt

that Matthew Eappen died because Defendant shook him and battered

him against an unyielding object?  Put another way: Did the

defense evidence create a reasonable doubt that the death result-

ed from some other cause?

         2. Motion for a Required Finding of Not Guilty.

     It is essential to understand that at no time was Defendant

obliged to prove anything.  The jurors were never required to

choose between competing explanations.  If the government's

theory failed to win them over, beyond a reasonable doubt, their

inquiry was complete; the defense's inability (if inability it

was) to explain Matthew's injuries and their cause would make no

difference.

     The law never, in any way, demanded of Defendant that she

provide a jury-satisfying answer to any question, whether medical

(how old was the fatal hemorrhage?) or physical (what had Defen-

dant done to Matthew?).

     Thus a verdict of Guilty could not properly result from the

jury's merely rejecting the defense's physiological explanation

as inadequate or Defendant's version of the events as implausi-

ble.  The jury could return a Guilty verdict only if, in addition

to an adverse assessment of the defense position, the jurors

concluded, on all the evidence, that the prosecution's version

was true, beyond a reasonable doubt.

     To escape reasonable doubt in the present case, a jury would

have to disbelieve all the evidence contradicting the govern-

ment's hypothesis.  The jury would have to dis-credit, that is,

refuse to accept, the combined conclusions of the defense wit-

nesses.  

     Given the strength of the defense evidence, could the jury

lawfully reject it?  Most certainly.  As judges always tell ju-

ries--as this judge told this jury--evidence is evidence if the

jurors believe it; what they choose not to believe is not evi-

dence.

     Although application of this principle would mean that the

jury spurned, as not worthy of belief, professional opinions

emanating from a corps of highly-qualified, authoritative ex-

perts, such dismissal is unquestionably within the jury's prov-

ince.

     Now for purposes of deciding Defendant's Motion for a Re-

quired Finding of Not Guilty, the law requires our assuming that

the jury did indeed discard every scrap of evidence (testimonial

or visual, direct or circumstantial) tending to cast doubt on the

prosecution's theory.

     Measuring the evidence by this strict standard, my duty

inescapably mandates my denying the motion in its entirety. 

Whatever my own views of the evidence might or might not be, I

cannot, in deciding this Motion, place any of them upon the

scales.

                    3. Motion for a New Trial.

     A judge may not grant a new trial merely because had he been

the fact-finder the case would have come out differently.  In

stating this truism, of course I do not suggest any disagreement

with the verdict as delivered.  In any event, the offense charged

did not allow a test of the hypothesis, since the defendant in an

indictment for first-degree murder cannot elect a juryless trial.

     The verdict, it seems to me, was not against the weight of

the evidence.  In reaching this conclusion, I have considered

each of Defendant's specific contentions:

     a. The government certainly should have discovered the so-

        called "skull fracture photographs" earlier and given
 
        them to the defense well before the start of trial. 
 
        The late disclosure, although inexcusable, did not
  
        prevent effective presentation of the evidence and its
   
        significance; that is the legal test, Commonwealth v.
    
        Lam Hue To, 391 Mass. 301, 309 (1984).  In this connec-
       
        tion it is worth noting that because the Court denied
      
        the Commonwealth's proffer of rebuttal evidence, the
  
        re-called defense witness, Dr. Michael Baden, offered
   
        the last word on the photographs and the conclusions to
    
        be drawn from them.  Moreover, the defense was afforded
     
        ample opportunity to exploit the entire matter in
      
        closing argument.
  
           Tucceri v. Commonwealth, 412 Mass. 401 (1992), is
 
        not to the contrary; among other things, the jury there
 
        never saw the exculpatory evidence.  Similarly, in
 
        Commonwealth v. Gagliardi, 21 Mass.App.Ct. 439 (1986),
  
        the Commonwealth's misconduct was egregious and in-
       
        volved evidentiary culpability by the prosecutor much
    
        more prolonged and extensive than the government's
    
        performance here.
     
           Finally, in Commonwealth v. Lam Hue To, supra, the
   
        assistant district attorney himself concealed the
     
        evidence from the defense after having learned of its
     
        existence well before trial, and compounded the misbe-
       
        havior by deliberately misrepresenting the situation to

        the trial judge.  

     b. Whether a recent fracture would have demonstrated soft

        tissue swelling was a matter on which the experts
 
        disagreed; that does not equate with the right to a new
   
        trial.
 
     c. The "serum" evidence does not mandate a new trial. 

        Absence of a contemporaneous transcript of Dr. Jan

        Leestma's testimony--a normal occurrence in the Massa-
       
        chusetts Superior Court, and not to be held against the
 
        faithful, dedicated court reporter--necessitated either
 
        not responding to the jury's request, or interrupting

        deliberations of a sequestered jury for the time neces-
       
        sary to transcribe the testimony (which had lasted for
 
        parts of two days).  The alternative, preparing a
 
        transcript of only selected portions, was not possible

        here, where counsel could not agree on the selections. 

        Even if they had agreed, the delay would have held the

        jury idle an unacceptably long time.

           Thus in accordance with the normal practice in Supe-
       
        rior Court trials, the transcript was not read.  Unless
 
        one or both of the parties make arrangements for daily
 
        transcripts, none is available.  Here, defense had
 
        caused the transcription of Dr. Joseph Madsen's testi-
       
        mony, but not Dr. Leestma's.  When the jury asked for

        the former, no reason existed why it should not be

        read; Defendant, in fact, agreed that the jury should

        receive it.  The lack of a Leestma transcript was, from

        the defense standpoint, unfortunate.  However, here

        again, nothing prevented counsel, in final argument,

        from putting to the jurors his own recollection and

        urging them to draw the appropriate conclusion.

     d. Dr. Leestma's neuropathology findings came before the

        jury in full, illustrated detail.  Absence of the dura

        was disputed at trial; the jury was entitled to believe

        that nothing substantial was gone.  In this, the

        Court's previous contrary findings, made in a different

        proceeding and context, do not control.

     e. Dr. Alisa Gean's testimony may have tended to prove the

        age of the hematoma; it did not, as Defendant argues,

        prove the point.

     f. Similarly, the ophthalmological evidence as to the

        state of the retinas is at best (from the defense

        standpoint) inconclusive.

     g. Contrary to Defendant's contentions, the Court plainly

        told the jury to confine its inquiry to the events of

        February 4 and told the jury that the Commonwealth was

        obliged to prove that Defendant acted intentionally

        (albeit that she lacked intent to kill).  It is settled

        law that under the definition of "malice" which the

        Commonwealth pursued here, a person can be guilty of

        second-degree murder even absent an intent to kill or

        even an intent to harm, so long as the Commonwealth

        proves: (a) an intentional act (b) which in circum-
          
        stances known to the defendant (c) created what a

        reasonably prudent person would have known was (accord-
          
        ing to common experience) a plain and strong likelihood

        that death would result.

     h. Defendant incorrectly states that criminal liability

        for homicide depends on proof that brain death preceded

        withdrawal of life support.  The test in this Common-
          
        wealth is not the order of the events, but whether or

        not Defendant's act was the direct cause of Matthew

        Eappen's death.  On that, the Court's instructions to

        the jury were explicit.

     i. The test for malice (in the circumstances here) is

        whether, under the circumstances known to Defendant, a

        reasonable person would have known that her intentional

        act created a substantial risk of death to Matthew

        Eappen.  This test has long been the rule in Massachu-
          
        setts.  As Chief Justice Oliver Wendell Holmes noted

        almost a century ago, "it is possible to commit murder

        without any actual intent to kill or to do grievous

        bodily harm," Commonwealth v. Chance, 174 Mass. 245,

        252 (1899).  The only intent the government need prove

        is the intent to perform the act, not any particular

        intent as to the act's consequences.  

     j. The effect of pre-trial publicity on the jurors was the

        subject of a searching, prophylactic empanelment proce-
          
        dure, complete with special questionnaires and individ-
          
        ual interrogation of prospective jurors.  All the

        jurors seated satisfied the Court and counsel that

        neither the publicity nor any other cause had affected

        their individual ability to decide the case entirely on

        the evidence.  The publicity gives no cause for a new

        trial.

     k. The evidence in this case sufficed, however thinly, to

        support an indictment alleging extreme cruelty and

        atrocity.  Whether obtaining the indictment in that

        form was wise or compassionate is not for the Court to

        say at this time.  Unlike Commonwealth v. Gagliardi,

        supra, at 446, where the prosecutor, during the trial,

        conceded a lack of evidence to support a conviction for

        first-degree murder, the prosecution consistently urged

        first-degree murder, and the medical evidence here

        permitted that stance.

     l. The government's closing argument was tough, but emi-
          
        nently fair.  Indeed, throughout the trial the prosecu-
          
        tion team--like the defense--acted in accordance with

        the highest professional standards.

     A judge may grant a new trial "for any ... reason that

justice may require", G.L. c. 278, s. 33E, which blends with Rule

25(b)(2), see Reporter's Notes.  Under all the circumstances, I

do not think that justice requires a new trial.

                    4. Motion to Reduce Verdict.

     Even though the Court declines to allow a new trial, a very

serious issue remains as to the justice of the second-degree

murder verdict the trial produced.  The inquiry here is quite

different from what has gone before.

     In seeking a directed acquittal or a new trial, Defendant

argued that the evidence as to causation so strongly raised a

reasonable doubt as to liability for Matthew Eappen's death that

the conviction could not stand.  Now Defendant urges a reduced

assessment of her culpability, relying upon Massachusetts Rule of

Criminal Procedure 25(b)(2):

       If a verdict of guilty is returned, the judge may
       on motion ... order the entry of a finding of
       guilty of any offense included in the offense
       charged in the indictment.

     The test here is no longer narrowly legal.  The judge,

formerly only an umpire enforcing the rules, now must determine

whether, under the special circumstances of this case, justice

requires lowering the level of guilt from murder to manslaughter

(or even to battery).  The facts, as well as the law, are open to

consideration, Commonwealth v. Jefferson, 416 Mass. 258, 266

(1993).

     In deciding this issue, the judge must, above all, use the

power sparingly, Commonwealth v. Dalton, 385 Mass. 190, 197

(1982), and with restraint, Commonwealth v. Williams, 364 Mass.

145, 151 (1973), taking care not to act arbitrarily or unreason-

ably, Commonwealth v. Cobb, 399 Mass. 191, 192 (1987).  The judge

does not sit as a second jury, Commonwealth v. Little, 35

Mass.App.Ct. 949 (1994) (rescript), or even as a thirteenth

juror, Commonwealth v. Carter, 423 Mass. 506, 512 (1996); he

should not second-guess the jury, Commonwealth v. Millyan, 399

Mass. 171, 188 (1987).  Nonetheless, he is entitled to consider

testimony that the jury may have disbelieved, see Commonwealth v.

Keough, 385 Mass. 314, 320 (1982), including such of Defendant's

own testimony as he finds credible, id. at 321.  

     Because Rule 25(b)(2) is a kind of safety valve, Common-

wealth v. Cole, 380 Mass. 30, 38 (1980), a means of rectifying

disproportionate verdicts, Commonwealth v. Gaulden, 383 Mass.

543, 556 (1981), the test is not whether the evidence could

support a verdict of second degree murder, but whether a lesser

verdict more comports with justice, Commonwealth v. Ghee, 414

Mass. 313, 321 (1993).

     After considering the law and the evidence of the whole case

"broadly", Commonwealth v. Mahnke, 368 Mass. 662, 702n. (1975),

to determine whether "there was any miscarriage of justice,"

ibid., the judge's duty requires: weighing "the fundamental

fairness of the result," Commonwealth v. Ravida, 371 Mass. 243,

249 (1976); deciding whether a reduced verdict would be more

consonant with justice, Commonwealth v. Ghee, supra, at 321; and

determining whether justice "will be more nearly achieved" by a

reduction, rather than by allowing the jury's verdict to stand,

Commonwealth v. Baker, 346 Mass. 107, 119 (1963). 

     In short, the court may reduce the level of the conviction,

for any reason that justice may require.  This in turn means that

the judge must decide whether failing to reduce the verdict

raises a substantial risk that justice has miscarried, Common-

wealth v. Shelley, 381 Mass. 340, 349-350 (1980).  The scope of

review may be even broader than requiring Defendant to show

"grave prejudice" or "substantial likelihood" that a miscarriage

of justice has occurred, Commonwealth v. Cole, supra, at 38.  

     Rule 25(b)(2) applies ameliorative justice on a case-by-case

basis.  Its use--designedly rare--thus does not erode established

criminal-law principles.  

     The Court may not, however, take into account the feelings

of those the death has affected; the judge must focus entirely on

the events of the trial.  Thus although as a father and grandfa-

ther I particularly recognize and acknowledge the indescribable

pain Matthew Eappen's death has caused his parents and grandpar-

ents, as a judge I am duty-bound to ignore it.  I must look only

at the evidence and the defendant.

     Having considered the matter carefully, I am firmly con-

vinced that the interests of justice--as Rule 25(b)(2) and the

cases construing it have defined them--mandate my reducing the

verdict to manslaughter.  I do this in accordance with my discre-

tion and my duty.

     Viewing the evidence broadly, as I am permitted to do, I

believe that the circumstances in which Defendant acted were

characterized by confusion, inexperience, frustration, immaturity

and some anger, but not malice (in the legal sense) supporting a

conviction for second degree murder.  Frustrated by her inability

to quiet the crying child, she was "a little rough with him,"

under circumstances where another, perhaps wiser, person would

have sought to restrain the physical impulse.  The roughness was

sufficient to start (or re-start) a bleeding that escalated

fatally.  

     This sad scenario is, in my judgment after having heard all

the evidence and considered the interests of justice, most fairly

characterized as manslaughter, not mandatory-life-sentence

murder.  I view the evidence as disclosing confusion, fright, and

bad judgment, rather than rage or malice, see Commonwealth v.

Gaulden, supra, at 555.

     One further point requires attention.  Defense counsel

vigorously urged, and the government with equal vigor opposed, my

denying the jury an opportunity to consider the verdict of man-

slaughter, a decision which I based on Commonwealth v. Pagan, 35 

Mass.App.Ct. 788, 792 (1997); Commonwealth v. Roberts, 407 Mass.

731, 737 (1990).  Today the positions are reversed.  The defense

seeks a reduction to manslaughter; the government decries allow-

ing Defendant a second opportunity.

     Had the manslaughter option been available to the jurors,

they might well have selected it, not out of compromise, but

because that particular verdict accorded with at least one

rational view of the evidence, namely: (1) Matthew did indeed

have a pre-existing, resolving (i.e., healing) blood clot; (2)

Defendant did handle him "roughly"; (3) the handling (although

perhaps not the roughness) was intentional; (4) the force was,

under the circumstances, excessive, and therefore unjustified;

(5) the handling did cause re-bleeding; and (6) the re-bleeding

caused death.

     If the jury determined that those were the facts, the

combination would amount to an unjustified, intentional, uncon-

sented-to touching (i.e., a battery) which resulted in death. 

Manslaughter is simply a fatal battery, Commonwealth v. Campbell,

352 Mass. 387, 397 (1967).  Defendant's lack of intent to cause

death or even injury would have been, legally speaking, irrele-

vant, as would Defendant's lack of knowledge about Matthew's pre-

existing condition.  The principle is simple: If you apply force

to another person's body, you take the risk that (unknown to you)

your blow, which an ordinary person could physically tolerate,

may kill the individual you strike.  The victim's hidden physical

weakness does not exonerate the perpetrator.

     No one, of course, doubts that had the Court denied Defen-

dant's request, and had the jury convicted of manslaughter,

defense counsel would be arguing that the jurors had unfairly

compromised, see Commonwealth v. Pagan, supra, at 792.  It seems,

then, at first glance unfair that Defendant should be able to

escape the consequences of a decision by her experienced lawyers

which she personally and publicly approved.

     In fact, it is not unfair.  I do not criticize counsel's

advice and Defendant's adopting it.  Given the state of the

evidence, it was a rational, appropriate position.  Had it

succeeded, the defense would be hailed for courage and foresight.

     Should Defendant now be permitted to second-guess herself

and her lawyers?  If one regards the trial of a criminal case as

a high-stakes game of chance where losers must accept their

losses, the answer is, Certainly Not.

     Massachusetts, however, never has and does not now view

Justice as a handmaiden to Tyche, the Goddess of Good Fortune. 

Of course chance plays a part in litigation, as it does in every

aspect of life.  A court, nonetheless, is not a casino.  The only

institutionalized luck in a courtroom is the random selection of

the jury venire at the beginning of trial and the random choice

of alternate jurors at the end.

     Rule 25(b)(2) requires a judge to view the entire case with

a clear and steady eye.  The search is not for justice, but

rather for that rare collection of circumstances, the grave

failure of justice.  If leaving the verdict untouched would

preserve a miscarriage of justice, Rule 25(b)(2) makes the

judge's duty clear.  He must determine the existence of the

miscarriage, not its cause.

     After intensive, cool, calm reflection, I am morally certain

that allowing this defendant on this evidence to remain convicted

of second-degree murder would be a miscarriage of justice.

     One final word.  All of us--the prosecution, the defense,

the Court, and the public--owe deep gratitude to the jury here,

deliberating jurors and alternates alike, who gave of their time

and effort and, in the aftermath, their privacy.  Neither they

nor anyone else should interpret today's decision as in any way a

criticism of them.  The decision rests, as it should, entirely on

my determination, guided by my reason, my conscience, and the

established precedents and principles, that the interests of

justice are best served here by my exercising my informed discre-

tion and lowering the degree of guilt attributable to Defendant.


                              ORDER

     It is Ordered that the sentence imposed herein, October 31,

1997 be, and the same hereby is, Vacated; and it is

     Further Ordered that the verdict of Guilty, Murder in the

Second Degree, returned October 30, 1997 be, and the same hereby

is, reduced to Guilty, Involuntary Manslaughter; and it is

     Further Ordered that Defendant be brought before this Court

Monday, November 10, 1997, at 3 o'clock in the afternoon, then

and there to receive her sentence on the verdict as reduced.




                                            (signed)             
                                            Hiller B. Zobel      
                                            Associate Justice,   
                                            Superior Court       


Dated: November 10, 1997

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