Citing autopsy photos introduced late in the trial, attorneys for a British au pair convicted of murdering an infant in her care asked a judge Tuesday to change the verdict. They acknowledged that in hindsight, they perhaps shouldn't have kept the jury from considering manslaughter.
Defense attorney Barry Scheck said "unrefuted and overwhelming scientific evidence" proved Louise Woodward, 19, innocent in the death last February of 8-month-old Matthew Eappen.Middlesex Superior Court Judge Hiller B. Zobel said he would not make a decision on the request Tuesday. He did not say when he would rule.
Woodward's parents sat in the front row of the courtroom wearing yellow ribbons symbolizing their demand their daughter be allowed to go home.
The defense is seeking the overturning of the second-degree murder verdict or a reduction to manslaughter. Elaborating on written arguments submitted Monday, Scheck began by focusing on autopsy photos he said were unfairly introduced near the end of the trial by the prosecution - too late, he said, for the defense to question experts about them.
He said the pictures more clearly showed tissue growth around the perimeter of the injured area, which could indicate Matthew was injured before Feb. 4, the day Woodward called an emergency number to say the baby was having trouble breathing. The child died five days later.
"If we had had this photo from the very beginning, we would have been able to make a very important point," Scheck said.
But he was interrupted by Zobel, who said it was the defense's decision during the trial about what points to make or not to make.
"I'm getting weary of your telling me how much this would have made a difference when you didn't put it in," Zobel said. "It's inappropriate that you should now say, `Well, we decided not to put it in, but if we had put it in, this is what we would have done.' "
Prosecutors responded Tuesday that the evidence supported a second-degree murder conviction in the death.
"It is not an issue of second-guessing this jury, it is not an issue of being a 13th juror," prosecutor Martha Coakley said. "The test is if justice may not have been done, if no reasonable person would have confidence in the verdict."
The prosecutors argued that the defense, which requested that manslaughter not be presented to the jury as an option, shouldn't be allowed to have it both ways.
"It was the defense that demanded that the jury be given only two choices, murder or acquittal," prosecutors wrote. "The defense should not be permitted to proceed with an `all-or-nothing strategy,' sample the jury's verdict and then elect to move for a reduction to the very charge they opposed."
Defense attorney Harvey Silverglate admitted that the decision now "can be seen as a mistake. It was not made out of hubris. It was made to ameliorate prejudice we thought we were facing" because of the seriousness of the first-degree murder charge against Woodward.
In their motions, prosecutors urged that if the judge did change the verdict to manslaughter, he require Woodward to admit guilt - preventing her from appealing the decision to a higher court.
A manslaughter verdict would mean a sentence of up to 20 years; with time served, Woodward could be released immediately. The second-degree murder conviction carries a mandatory sentence of life with possibility of parole only after 15 years.
Observing a minute of silence, hundreds of people held a candlelight vigil Monday night to the murder conviction in the United States.
Wearing yellow ribbons, they flooded a sports field in Louise Woodward's hometown of Elton, England.
"You are showing through your support how much you care for the Woodward family and how much you care for Louise," Colin Parry, who lives in nearby Warrington, told the crowd. "I am sure your message is drifting across the Atlantic to her."