DID LEGAL SHOW-OFFS UNDERMINE AU PAIR 11-05-1997

Did Legal Show-Offs Undermine Au Pair?

November 5, 1997, Wednesday, NASSAU AND SUFFOLK EDITION

VIEWPOINTS; Page A46

By Al Gordon. Al Gordon is a Newsday Viewpoints editor.

THE SECOND-DEGREE murder conviction in Massachusetts of British au pair Louise Woodward is a case study in what happens when legal professionals decide to be clever rather than smart.

Yesterday, Judge Hiller Zobel held a hearing in Cambridge on post-trial motions that appear to be seeking to produce the outcome that most legal experts expected in the first place: a manslaughter conviction. But the jury, at the request of the defense, had only been allowed to consider murder.

Woodward’s murder conviction prompted an outcry in Britain and in some quarters in the United States. But, perhaps demonstrating why justice is dispensed by trial rather than by plebiscite, some polls showed that about two-thirds of the public didn’t want Woodward to get away scot-free - which, given the legal situation, would have required the second-degree murder conviction. And that, jury members have said, was exactly how they came to the verdict.

The outcry seems to reflect, in part, the assumption that real-life trials have the neat, clear-cut results seen in TV and movie courtroom dramas. But, as in most real trials, there was very little uncontested fact. We know that Matthew Eappen was rushed to the hospital Feb. 4, with a skull fracture and brain injuries, and that he subsequently died. Everything else is in dispute. Prosecution experts said these were acute injuries suffered that day; defense experts said the injuries were perhaps three weeks old. Police said Woodward confessed to having been rough with the baby; she denied on the witness stand ever having said so. So, the trial hinged on the way the contending factions pitched their cases - and therein lies the rub. There were way too many extraneous agendas at play here.

District Attorney Tom Reilly has had a string of victories in high-publicity trials, and is running for Massachusetts attorney general as a tough law-and-order candidate. It’s crude to suggest that his office went for first-degree murder - which legal experts saw as a major stretch in this case - for political gain. But it is reasonable to assume that a “get-tough” mentality was dominant in the district attorney’s office. Either way, the prosecution decided the shrewd move was to over-charge Woodward.

Similarly, E.F. Au Pair, the agency that brought Woodward to America, paid for the defense, hiring one of the leading criminal defense firms in Boston and bringing in Barry Scheck (of O.J. Simpson fame), a specialist in trying cases based on medical and scientific evidence. Again, there are crude questions: Was the defense concerned about protecting the agency from a lawsuit or about protecting Woodward? The lawyers flatly deny any conflict.

But, there is a subtle consideration: Big-bucks defenders tend toward more elaborate strategies than ham-and-egg practitioners. A hack lawyer might have gladly accepted a manslaughter plea. The Woodward team, able to afford mock trials which, the Boston press reported, resulted in acquittals, was emboldened to forego the manslaughter option and try for an “all or nothing” verdict.

It would be tempting to dismiss this all as a unique situation. But it could happen again - it almost certainly will - and in any state. Both legislatures and bar associations need to look at how lawyers’ gamesmanship undermines public confidence in the legal system.

For one thing, British criticism of the trial’s fairness may be off base, but the British are right to be appalled at the pretrial publicity. Much of the emotion stirred up by the case is the by-product of efforts by police and prosecutors to convict Woodward in the press, and the subsequent counter-attack by the defense team. It is time for lawyers to pay more than lip-service to the need to curtail pretrial PR.

Second, whether manslaughter is appropriately an “included offense” with murder is being decided for the most part case-by-case, courtroom-by-courtroom. This should not be a question of clever legal tactics, but rather a policy decision to be made by legislatures.

Did Legal Show-Offs Undermine Au Pair?., pp A46.