COMMONWEALTH OF MASSACHUSETTS

COMMONWEALTH,
Appellee,
v.
LOUISE WOODWARD,
Defendant-Appellant.
ON APPEAL FROM A JUDGMENT AND ORDER
OF THE SUPERIOR COURT
____________________________________________________________
BRIEF OF DEFENDANT-APPELLANT
____________________________________________________________

Date: January 27, 1998

TABLE OF AUTHORITIES

CASES

ISSUES PRESENTED

1. Did the Trial Court err by refusing, in response to the jury’s specific and repeated requests for a read-back of what it labeled "critical" testimony, to provide either the read-back or a response to the jury’s question as to how long it would take to fill its request?
2. Was dismissal of the indictment, or at least preclusion of specific prosecution expert testimony, required as a result of the Commonwealth’s successful objection to the defendant’s motion to conduct a second autopsy, where the skull fracture and critical brain tissue from the Medical Examiner’s autopsy were discarded in violation of a judicial tissue-preservation order?
3. Did the Court err in not instructing the jury that malice requires proof that defendant was aware of the life-endangering risk posed by her conduct?
4. Did the Court's supplemental instruction relieve the government of its burden to prove every element of the offense, including causation?
5. Did the Trial Court err in refusing to instruct the jury that the government had the burden of disproving accident?
6. Where the record contains uncontroverted neuropathology findings from the dura, proving that the skull fracture was weeks old, did the Trial Court err in refusing to enter a required finding of not guilty?
7. Did the Trial Court err by excluding results of the defendant's polygraph examination?
8. Did the Trial Court err by refusing to question prospective jurors as to their knowledge of, and attitudes toward defense counsel Barry Scheck, by reason of his activities as O. J. Simpson's trial counsel?

INTRODUCTION

This prosecution of Louise Woodward, an 18-year-old British au pair, for the first-degree murder of Matthew Eappen, the 8-month old infant in her care, according to the view of both sides, could succeed only upon the jury’s acceptance of the prosecution’s theory that the fatal injuries – a skull fracture and subdural hematoma causing brain swelling and then death – were inflicted within a period of two to no more than six hours prior to the initial CT scan of Matthew's head at 5:12 p.m. on Tuesday, February 4, 1997. The theory is the criminal law equivalent of res ipsa loquitur – that is, medical evidence shows circumstantially that the injury was inflicted while Ms. Woodward was the only adult with the infant, and the force with which the injury was inflicted was so great that only Woodward, and not Matthew’s two-year-and-eight-month old brother Brendan, could have done it. If the Commonwealth could not prove beyond a reasonable doubt that the injury was inflicted during this February 4th "time box," it could not prevail.¹
There being no adult witnesses to the events of the afternoon of February 4th, the Commonwealth sought to meet its burden with expert medical testimony that the brain injury was so severe by the time the infant presented at the Emergency Room that (1) the injury had to have been inflicted during the "time box" because the infant would have been rendered unconscious immediately upon injury, and it was uncontested that the infant was conscious as of early that afternoon; and (2) only an adult could have inflicted such a violent slamming against a flat, hard surface and violent shaking that together caused the skull fracture and brain damage. These experts portrayed the case as a "classic" example of "shaken baby/impact syndrome"described in a ground-breaking 1987 study by Drs. Ann-Christine Duhaime and Lawrence E. Thibault (the "Duhaime-Thibault paper").²
The defense put on a substantial medical and scientific case through experts of its own and cross-examination of prosecution witnesses, seeking to demonstrate that the initial injury had occurred approximately three weeks earlier but remained essentially asymptomatic until commencement of a February 3rd or 4th re-bleed of the old, healing injury. The re-bleed could have started either spontaneously or from normal jostling. It initially resulted in gradually increasing intra-cranial pressure ("ICP"), which produced symptoms described by Woodward in response to questions posed by the child’s mother at a time when Woodward would not have known they were classic symptoms of brain injury: unusual irritability, prolonged and inconsolable crying, lack of appetite, drowsiness, and unusually prolonged sleep. The defense presented evidence that the fatal brain swelling was due not to recent violent trauma, but rather to anoxia (oxygen deprivation) from increasing pressure on the brain stem. This pressure interfered with respiration for a fatally long period when ambulance paramedics failed to intubate and ventilate the infant’s lungs.
The forensic medical controversy was therefore central, for it would determine whether the injury was inflicted by an adult during Woodward’s sole watch (the "time box" period) or at a weeks-earlier time when others shared the infant’s care. Further, if the injury took place earlier, the force used to inflict it and the force causing the re-bleed would have been consistent with an accident.

STATEMENT OF PROCEEDINGS

Ms. Woodward dialed 911 at 3:45 p.m. on February 4th. Police and paramedics arrived, and the latter transported the infant to Children’s Hospital, where he underwent emergency neurosurgery. The following morning police spoke with staff physicians at Children’s, and, after receiving their opinion that the injuries were inflicted hours earlier by an adult and were classic evidence of "shaken baby/impact syndrome," a complaint issued charging Ms. Woodward with assault and battery upon a child causing bodily injury. She was arrested and held on bail set by the Newton District Court. On February 10, 1997, after the baby died, she was arraigned and held without bail on a murder complaint.
On February 11th, while the Medical Examiner’s autopsy was still incomplete,³ defense counsel moved to have a forensic pathologist retained by the defense conduct a second autopsy. A-17. The Commonwealth opposed, the request was denied, but the court did issue the following order:

Upon emergency motion by the defendant in the above-captioned action, Louise Woodward, notice having been given to all parties, and, after hearing, it is hereby ORDERED that the Commonwealth must preserve all evidence acquired by the Medical Examiner during post-mortem examinations. A-27.

A one-count murder indictment was returned March 2, 1997. A-28. The Court (Hon. Hiller B. Zobel) ordered Ms. Woodward held without bail.
The Polygraph Admissibility Hearing
On June 13th Woodward moved in limine for the admission at trial of the results of a polygraph examination conducted on May 7th, concerning whether she had injured Matthew Eappen on February 4, 1997. A-30. The examination had been conducted at MCI-Framingham by David C. Raskin, Ph.D., who concluded that, based on scientifically validated numerical scoring, Woodward’s answers to the four questions in which she denied having injured Matthew Eappen on February 4, 1997 were truthful. A-40. The defendant sought to introduce the results for the limited purpose of supporting her testimony at trial. Tr. 7/14/97 at 5-6.⁴
On July 14-16, the Court conducted an evidentiary hearing pursuant to Commonwealth v. Lanigan 419 Mass. 15 (1994), Commonwealth v. Stewart, 422 Mass. 385 (1996), and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), for the purpose of determining (1) the scientific reliability of the techniques used, and (2) the accuracy and proficiency of Dr. Raskin. The Court then denied the motion to admit the polygraph because it found that Woodward failed to show that Dr. Raskin had in similar circumstances demonstrated, in a statistically-valid number of independently-verified and controlled tests, a high level of accuracy of the conclusions that he reached in those tests. Tr. 7/16/97 at 96-100. The Court found that the two studies upon which the defense had relied did not constitute independent verification of Dr. Raskin's work because he was listed as one of the author-researchers in each of the studies. Id. at 96-100; A-113, 125.
The Missing Brain Tissue Hearing
Ms. Woodward filed a motion concerning brain tissue missing from the Office of the Medical Examiner ("ME" and sought an evidentiary hearing, which was held September 24-26. Dr. Umberto De Girolami, who led the 3-member team that had conducted the brain examination for the ME, testified that, after the Newton District Court entered its evidence preservation order, he personally had cut two square pieces of dura -- one from the right parietal area, from which one microscopic section was taken, and one from the left parietal area, from which no section was taken -- and had discarded the unsectioned residue of the squares. Tr. 9/25/97 at 169-171. The defense argued that cutting the dura with neither notice to the defense nor court approval was unlawful, Tr. 9/25/97 at 242, and prejudicial because its experts never had a comparable opportunity to examine the uncut dura. Moreover, the missing dura was critical to its expert presentation because, without the preservation of the clot, the portion of the dura adjacent to the site of the clot would be the next-best indicator of its age, as it would contain evidence of a healing process, such as capillary or neomembrane formation, indicative of old rather than acute injury. The judge nonetheless refused to dismiss the indictment (Tr. 9/26/97 at 5) or preclude prosecution opinion testimony based upon tissue unavailable to defense pathologists. 4:284-96.
Trial, instructions, jury questions
Trial commenced October 7th, and presentation of evidence went 14 days. On the penultimate day of evidence, the prosecution produced autopsy photos of pieces of the skull, including the fracture. A-395-397. None of these pieces of skull had been preserved, despite the tissue-preservation order, and thus the defense never was able to examine them with post-mortem radiography and microscopy to develop evidence of healing that would have proven beyond dispute that the fracture did not occur on February 4th.
Final arguments were on October 28. 15:10-106. The jury was instructed. 15:107-135. Objections were made to certain of the Court's refusals to charge as requested. 15:135-148. Jury deliberations began. Shortly after beginning deliberations, the jury asked for a copy of the judge's instructions (A-449; 15:154), in response to which the Court provided a copy of the Court Reporter’s audiocassette of the charge. 15:163-164.
The next morning, without notice to nor consultation with counsel, and without a question from the jury, the Court delivered a "suggestion" to the jury concerning the nature and sequence of questions -- including "cause of death," "state of mind of the defendant," and "extreme atrocity or cruelty" -- which it "may" answer in reaching a verdict. The "suggestion" concluded: "It may be a little easier to approach it in a systematic way. But, again, that's just a suggestion and you're entitled to approach the issues in the case any way you wish." (16:5) A defense objection (16:8-9) and requests for a curative instruction were denied. A-444; 16:21.
During deliberations, the jury sent five more notes to the Court with respect to two separate but inter-related requests to have certain evidence read back, all of which related to a central defense contention that serum at the site of the subdural hematoma demonstrated an old injury.
The first request focused on the testimony of a key prosecution witness, Dr. Joseph Madsen, who had performed the neurosurgery and appeared as both percipient and expert witness. The note said:

May we please have a copy of, or have read to us a copy of Dr. Madsen’s testimony regarding the fluids seen during the operative procedure (direct, cross, redirect, recross)?

A-450; 16:25. The prosecutor objected ("I would suggest that their memory of the evidence should dictate" (16:25-6)), even though a transcript had already been prepared, while defense counsel urged that it would be "fairly easy to pick out those sections." 16:27. The trial judge sent the jury a request for clarification: "Please define the fluid or fluids to which this question refers." A-450; 16:30. The jury replied:

The fluids we are referring to are those seen when the doctor punctured the dura during the operation.

A-451; 16:30. Counsel were instructed by the Court to select the portions of transcript responsive to the jury’s request. When disagreements arose, the Court admonished counsel of "everybody’s obligation to be responsive to the jurors’ questions." 16:40. When disagreements persisted, the Court suggested that the jury might want to "refine the question" in order to assist the selection process. 16:46-47. Defense counsel demurred to this reluctance by the trial judge to resolve the disputes himself so that the jury’s request could be filled, and in so arguing counsel noted that "the disputed issue here has to do with whether or not there’s an old injury, and serum is a sign of old injury." 16:48-9. The Court responded that "if the jury wanted to know about serum, they would have said ‘serum.’" 16:50. Defense counsel replied that they would be satisfied simply to supply the jury with the entire Madsen transcript, and the jurors could select the portions of interest to them. 16:52. While this dispute was proceeding, the jury mooted the problem by sharpening its request:

In reference to Dr. Madsen’s testimony about the liquid that was released when the dura was punctured during the operation, we would like to hear or read the testimony regarding the color and physical characteristics of the initial fluid (direct, cross, redirect, recross) please.

A-452; 16:62. The next morning, the pertinent portions were re-read to the jurors. A-453; 17:4-9. Included in the read-back was Dr. Madsen’s testimony that when he punctured the dura, a "clear’ish" fluid first came out, followed by "red" and then "purple blood." 17:6. The "clearish fluid" was "like serum" and "would be a sort of yellowish-clearish breakdown of blood when it sediments."⁵ 17:7. "The clearish fluid," he repeated, was "serum." 17:9.
However, the mere presence of serum was not sufficient to convince the jury that the injury was old since, after all, Dr. Madsen, who saw the serum, had nonetheless opined that the injury was acute. 3:39; 3:85-6. The next day the jury pursued the logical second half of its quest; it posed a follow-up request concerning serum’s significance:

May we please hear Dr. Leestma’s testimony which refers specifically to serum (direct, cross, redirect, recross)?

A-467; 17:19. The Court noted that Dr. Leestma’s testimony, unlike Dr. Madsen’s, had not yet been transcribed, and he suggested that the answer to the jury’s request should be "no." 17:19. Neither the prosecutor (17:19) nor defense counsel (17:20) objected. However, less than an hour later, at 11:45 a.m. (17:20) on what turned out to be the final day of deliberations, the jury became adamant:

With respect to our last request, hearing Dr. Leestma’s testimony regarding serum is critical to advance deliberations. We respectfully request that the testimony be transcribed so that we may hear it. Please give us an estimate of how long this would take.

A-468; 17:39. The trial judge, although he recognized that it would not be literally "impossible" to fill this request, deemed it "‘impossible’ as a practical matter for present purposes" (17:21), despite the fact that the Court’s own trial notes "have two references..., one with the word ‘serum’ explicitly, and one to ‘straw-colored fluid,’" and the Court Reporter "tells me that she can probably, without a great deal of expenditure of time, locate those two particular items." 17:21. The prosecutor again suggested that the jurors be "told that they rely upon their memory and the notes that you allowed them to take during the course of his testimony." 17:21. This time, however, with the jury clearly focused on the verdict-determining significance of serum as testified to by the defense’s lead expert on that question, the defense pressed the Court to comply with the request because it would be relatively easy to locate those portions of Dr. Leestma’s testimony and the jury had now indicated this was "critical." 17:21-3. The Commonwealth persisted in its objections. 17:24-6. The Court expressed discomfort over the possibility that the two portions of Dr. Leestma’s testimony that the judge’s notes pinpointed, which coincided with defense counsel’s notes (17:21), while clearly responsive to the jury’s request, might not be all-inclusive. 17:26-7. Defense counsel suggested that the jury be given at least the two sections clearly identified as responsive, while both sides would continue to search for more. 17:28. Defense counsel then made another suggestion – that the jury be supplied with a videotape of the entire Leestma testimony, so that the jury might review it all or simply fast-forward to the portions of interest. 17:29. Counsel noted that the Court Television channel not only had a videotape of the complete testimony, but had the available technology to search the tape for key words. 17:29. Counsel also offered to "right now...order an expedited transcript to begin to be prepared immediately." 17:31.
The Court responded negatively to these myriad suggestions and requests by defense counsel for how the jury could be provided with a verbatim version of Dr. Leestma’s testimony in a period of time ranging from immediately (for the videotape⁶) to a day (for the transcript⁷). 17:32. The Court even refused to answer the jury’s query as to how long transcription would take or to inform it that video and audio tapes were instantly available:

Now, Dr. Leestma testified for the better part of two days. Transcribing his testimony would take, I think I can fairly put it to you this way, quite a while. So we are really not in position to respond to your request.

17:39.
Verdict, Post-Verdict Motion, and Sentence
On October 30, 1997, after 27 hours of deliberations spanning three days, at 9:30 p.m. on the day that it unsuccessfully sought Dr. Leestma’s testimony, the jury returned a verdict of murder in the second degree. 17:43. The Court the next morning imposed the mandatory life sentence. 18:11-12.
Woodward filed a motion for post-verdict relief on November 3rd, raising numerous claims of trial error. A-469. The motion was argued on November 4th, and on November 10th the judge denied the requests for a required finding and for a new trial, but allowed that part of the motion seeking a reduction in the verdict to manslaughter. A-543. Later that day, the Court sentenced the defendant to "time served". The Court denied the Commonwealth's motion to stay its order, but ordered the defendant not to travel outside the Commonwealth. 20:14-15.
On November 25, 1997, the Commonwealth noticed its appeal from the November 10^th order, and simultaneously filed a petition seeking immediate vacation of the order pursuant to G.L. c. 211, §3. The defendant filed her notice of appeal on December 1st. The County Court (Abrams, J.) heard the petition and ordered the Commonwealth's appeal and its petition to be heard simultaneously with the defendant's appeal after expedited briefing and oral argument. A-544.
Pertinent Trial Evidence
Woodward arrived in Manchester to work as an au pair for the Komishane family in June 1996. 13:112. Because Manchester was remote from Boston, a mutual decision was made for Woodward to transfer. She commenced at the Eappens in November, caring for Matthew (8 months) and Brendan (2 years, 8 months). 13:113. There was testimony, much of it conflicting, concerning certain incidents leading up to the date of Matthew’s hospitalization. Kathleen Sorabella testified to a conversation she had with Woodward in which Woodward expressed hostility toward the Eappens. 8:77-79. This was contradicted by the others in the conversation, Woodward (14:133) and Ruhana Augustin (8:173-174), and Sorabella was impeached by evidence of dishonesty (8:99-132) and contradicted by witnesses who testified to Woodward’s displaying affection for the Eappen children. 8:167; 12:255. Deborah and Sunil Eappen, though generally satisfied with Woodward’s child care, described her occasional tardiness resulting from her social and cultural life in Boston. 7:177; 8:231. Sunil Eappen testified to an occasion when he found Woodward in the basement with the children left unattended for several minutes. 8:236-237. Woodward recalled that the incident occurred earlier and that she was in the basement, doing laundry, for only about a minute. 14:10-12. At a January 30th meeting, the Eappens and Woodward agreed to a list of Woodward’s responsibilities. 13:171.
Woodward was off on Saturday and Sunday, February 1st and 2nd. 13:173-4. February 3rd passed without significant incident, except that Deborah Eappen noticed that Matthew passed a "hard poop" on Sunday, and had no bowel movement on Monday. 8:12. That night, Ms. Eappen slept in the children’s bed with them. 7:194.
On the morning of February 4th, Ms. Eappen breast fed Matthew, then turned him over to Woodward before leaving for work at about 8:00 A.M. (7:194-196), directing Woodward to force fluids and bathe Matthew (14:44-5), who was crying when his mother left. 13:180. Woodward described the events of the day, consistently, in her testimony (13:178-215), in a phone conversation she had with Deborah Eappen after Matthew was taken to the hospital (7:197-8)(reflected in Eappen’s contemporaneous notes A-391), in a discussion with a family friend (Paula McCue) (6:284-8), and in her interview by Newton Police Det. William Byrne as reflected in his contemporaneous report. 6:203-4. Trial Exhibit 63.
Matthew remained upset after his mother’s departure, rubbed his eyes a lot, would not drink much and, contrary to his routine of remaining awake longer, fell asleep again well before 9 A.M. 13:180-3. Woodward awakened him, took him upstairs, placed him on the floor after undressing him, placed him in the bathtub, bathed him (where he was briefly consoled but mostly crying), removed him from the bath, re-dressed him and placed him in his crib for a nap at about 9 A.M. 13:184-192. The 3.5 hour nap was unusually long (13:199), and ended when Woodward found him awake but quiet, contrary to his usual pattern to make it known when he awoke. 13:193. Woodward took him downstairs and tried to feed him; he would not drink his bottle but ate some peas. 13:194-6. While Brendan was sleeping, Woodward had a long telephone conversation with Ruhana Augustin during which Matthew appeared normal (13:198), except that he fell asleep again by 2:30, only two hours after rising from his earlier 3.5 hour nap. At 3:15 P.M., Woodward heard that Matthew was awake. 13:201-2. Woodward again attempted unsuccessfully to feed Matthew his bottle, but he resisted and screamed inconsolably. 13:203. Woodward changed his diaper in the children’s upstairs bedroom, then placed him face-up in his crib with a toy while she went to the bathroom to wash her hands. 13:204. Upon her return, he appeared unwell. She picked him up, and he vomited on her shoulder. 13:205. She attempted to rouse him by clapping loudly, moving about with him in her arms, rubbing his back, shaking him gently. He made a gurgling sound and his eyes rolled back. 13:206-7. Then, as her panic grew, she finger-swept his mouth but found no breathing obstructions, and attempted to perform CPR as taught by the Eappens (13:206), followed by unsuccessful attempts to dial Sunil Eappen’s pager, and then a successful page of Deborah Eappen. 13:208-10. She dialed 911; the recorded call shows her (1) reporting a baby "barely breathing" (A-386; 2:96), (2) pleading for help (A-386), and, upon the arrival of the police, (3) directing the first responding Newton Police Officer to Matthew. A-388; 2:97; 13:209. Shortly thereafter, ambulance paramedics arrived, assessed Matthew, and headed for Children’s Hospital. 2:121-5. The paramedics had been unsuccessful in efforts to intubate Matthew; hence his lungs were not ventilated upon arrival at Children's. 2:124; 2:168-70. According to Dr. Kenneth Mandl, Matthew was by this time comatose and in full respiratory arrest. 2:180. An ophthalmologist, Dr. Giulio Diamante, noted in the hospital record that Matthew had bilateral retinal hemorrhages, but no deep retinal hemorrhages nor raised macular folds prior to surgery. A-389; 6:53-54. The hospital's examination discovered no external signs of trauma anywhere on Matthew's body, including any swelling, contusions, or abrasions on his head. 2:189-92. Shortly after admission, Matthew's head was subjected to computerized tomographic ("CT") scans, which showed a large subdural hematoma ("SDH") on the right side of his brain. 2:254-5. Matthew was prepared for neurosurgery.
Back at the Eappen home, while Matthew was in surgery, Newton Det. Sgt. Byrne interviewed Woodward in the presence of three other officers and was overheard as well by Eappen family friend Matthew McCue. 6:160-189; 7:14-16. Byrne testified that Woodward told him, inter alia, that (1) when she carried Matthew into the bedroom she "tossed him on the bed" (6:173), (2) when she brought Matthew into the bathroom to give him his bath, she "dropped him on the towel...on the floor" (6:173), and (3) she might have been "a little rough" with him. 6:177; 13:229.
These admissions attributed to Woodward by Byrne were thrown into doubt, however, when Byrne admitted on cross-examination that in the written report that he made to his superior on the night of this interview, he omitted reference to any of these supposedly inculpatory admissions. 6:210. He further admitted that he told Matthew McCue that, on the basis of the interview, he had no evidence with which to hold or charge Woodward and considered that she might be a "borderline hero." 6:247. Finally, Byrne admitted that while tape recorders were readily available at the Newton Police Department (6:237), and while he knew that he was going to the Eappen household for the purpose of interviewing Woodward, he nonetheless did not take a recorder but chose to rely on notes taken by a fellow police officer. 6:233. McCue then testified that he overheard Byrne interview Woodward, but McCue did not report hearing Woodward say these things. 7:14-16. Woodward, in her testimony, denied saying she "tossed" the baby on the bed or "dropped" him on the towel (13:228), and that rather than say she might have been "a little rough" with him, she actually said she "might not have been as gentle" as she could have been. 13:229.
Dr. Joseph Madsen testified that during surgery intracranial pressure ("ICP") was relieved and the SDH removed. 2:260-1. An opening was made in the right parietal area of the skull, and an incision was made in the dura, the membrane that surrounds the brain. 2:263-5. Dr. Madsen's surgical note stated that, upon his opening the dura, liquid blood spurted out: "This appeared to be clearish at first and then more red and this was followed by a rapid output of purple blood when the space was decompressed." 3:85. Dr. Madsen testified that the "clearish" fluid first seen was serum. 3:86, 201. He denied the fluid was cerebrospinal fluid ("CSF") rather than serum, since the latter is "more yellow," while CSF is colorless. 3:86-7. The clot was removed but not saved for microscopic analysis for cellular signs of healing, including formative membranes not discernible to the naked eye.⁸ 3:76. Post-surgery X-rays revealed a 2.5 inch, non-displaced, linear fracture in the right occipital region of the skull, and a non-displaced, linear fracture of the right distal radius (forearm/wrist) approximately 2-4 weeks old.⁹ 3:216-19; 3:212-16. Matthew's brain deteriorated over the next five days, during which more CT scans were made (3:22-32); he died February 9th (A-390); the autopsy began February 10^th (4:165); and the body was released by the Medical Examiner on February 13th for burial. A-390.
The prosecution experts opined that Matthew's head had been violently struck against a flat hard surface, with force equivalent to a fall of some 15 feet onto concrete, causing a severe "shaken-impact injury." 3:58-60; 4:162; 6:21-2; 7:33-4; 7:55-6; 7:105. No one disagreed with defense biomechanics expert Dr. Lawrence Thibault that the speed at impact resulting from a 15-feet fall would have been 21 miles-per-hour. 11-198-9. Some prosecution experts opined that there had been violent shaking, causing Matthew’s head to snap back-and-forth for about a minute (6:21, 7:33-4, 7:110), but Medical Examiner Dr. Gerald Feigin agreed with defense experts that there had been no violent shaking, in view of the absence of corroborative neck, spinal cord, and upper body injuries associated with shaking. 4:197-8. Any such shaken-impact injury during the period of Woodward’s sole custody of the infant on February 4^th would have caused prompt loss of consciousness. 3:61; 4:52; 4:189-90; 7:38-9.
During cross-examination, the prosecution’s experts conceded:
(1) Infants experience mild impact falls (two or three feet) and sustain skull fractures and subdural hematomas without losing consciousness or displaying neurological symptoms for days, weeks, and even months (3:134-5; 4:80-1, 88); (2) after "lucid intervals," when the subdural starts to "resolve" or "organize," the subdural can begin to re-bleed spontaneously or as a result of trivial jarring (3:137; 4:80-1); (3) the re-bleed can create a growing "mass effect" that puts pressure on the brain stem (3:140); (4) symptoms of this process include sleepiness, loss of appetite, difficulty in arousal, irritability, and lethargy (3:142; 4:70-1); (5) respiration problems that arise from pressure on the brain stem can lead to a severe anoxic event, which in turn can create severe hypoxic/ischemic injury and potentially fatal brain swelling (3:144-6; 4:98-9). These concessions gave additional weight to the defense experts' explanation of what occurred in this case¹⁰ and their view that the prosecution scenario of violent shaking and impact could not have happened because:
(1) Shaking sufficiently violent to produce such brain injuries would have had to produce accompanying neck, spinal, and other upper body injuries (9:161, 10:164, 11:281, 12:50, 12:292, 12:295, 13:25-6), if not a broken neck;¹¹ (2) there was no soft tissue subgaleal (scalp) swelling at the fracture site, even on a sensitive, pre-operative CT-scan ("bone window"), commensurate with a recent violent slam;¹² (3) there was unanimity among the experts that the fatal subdural was caused by the same event that fractured the skull. 3:41-2 4:51-2, 4:100, 7:38-9, 9:188, 11:268, 12:96, 12:272, 13:31.
Dr. Alisa Gean, who regularly monitors the accuracy of the visual observations of neurosurgeons compared to the evidence on CT scans, testified that the layered spurting from the subdural, described by Dr. Madsen, with red blood followed by purplish blood, was powerful confirmation of her CT scan reading that this was an older subdural with a recent re-bleed. 10:272-275. Dr. Leestma, in a portion of his testimony that the jury specifically requested be read-back because it was "critical" to their deliberations, opined that the serum observed by Dr. Madsen was clear indication of old injury. 9:139. In the testimony that the trial judge refused to allow the jury to re-hear, Dr. Leestma explained the significance of the initial spurting of serum:

Q: Doctor, I’d like to call your attention to Exhibit 27.

MR. SCHECK: And, your honor, this is the CAT scan, pre-operative CAT of February 4^th, image number five.

Q: Have you seen this before?

A: I have. Q: Now, Doctor, I’d like you to – Exhibit 27. I’d like you to assume that the surgical note in this case by Dr. Madsen reads, "a small opening in the dura was made, and liquid blood squirted out several feet from the patient. This appeared to be clearish at first, then more red, and this was followed by a rapid output of purple blood when the space was decompressed." I’d like you to bear that in mind.

I’d like you to further assume that the observation of Dr. Madsen before this Court was, that when he penetrated the dura in the dark area that I’m pointing out, that the clearish fluid that came out, he described as "clearish yellow," and identified as "serum." Do you have that in mind?

A: I got it.

Q: What significance in your opinion, to a reasonable degree of medical certainty, does it have that serum would have come out from that area, as we’re pointing to, that dark area on Exhibit 27?

A: The significance is that this is an older subdural hematoma which has partially resolved. There is no blood in that component of it anymore, only straw colored serum-like fluid.

Q: And could you describe for the jury what "serum" is and how it comes into existence.

A: It’s the natural history of a subdural hematoma to eventually be enclosed in a membrane, and the contents within that membrane to gradually disappear. Red blood cells gradually disappear, capillaries form, and they leak. They leak serum, which is the liquid part of our blood minus the cells. It’s a yellow proteinaceous straw-colored fluid. And that is the content of a subdural once the blood has gone away.

9:113-114.
The presence and significance of serum was one of two major avenues by which the defense sought to prove that the subdural was weeks, not hours old. The second major arena in which the age-of-injury contest was played out involved the age of the skull fracture. There can be no question that if the fracture, which both sides agreed was responsible for the subdural hematoma, occurred prior to February 4th, the fatal injury did not occur on Woodward’s sole watch; hence, there would be irrefutable reasonable doubt as to her responsibility for the injury. It was universally agreed by the experts, including Drs. Feigin and Cleveland for the prosecution, that a key observation that would date the fracture as old would be signs of healing on the fractured edges of the occipital bone. 3:224; 4:247-8.
However, due to the Newton District Court’s refusal to allow a second autopsy and the Medical Examiner’s having discarded the skull, the defense pathologists were unable to (1) examine and photograph the surfaces of the fracture, (2) conduct radiographic tests at the fracture site, and (3) do microscopic examinations¹³ of the surfaces of the fracture in search of evidence of healing structures indicative of age.¹⁴ Consequently, the defense was deprived of an expert witness who could rebut the Medical Examiner’s testimony that the edges of the fracture -- that he examined visually, photographed, and then discarded -- appeared on examination to be sharp and hence without visual signs of healing. 4:180, 184. However, due to the belated disclosure of autopsy photographs of the fracture, after all experts and the defendant had already testified, none of the prosecution’s witnesses were cross-examined about the extent to which the images suggested rounded and lipped edges indicative of healing and age. In the absence of a defense witness who had examined the actual skull fracture surfaces, the defense was limited to the testimony of Dr. Baden, who, recalled at the end of the trial, opined that the fracture’s lipped edges in the photographs were indicative of an aged healing process. 14:158-9.
Deprived of the most direct evidence of a healing skull fracture – namely, the skull fracture itself – defense witnesses relied instead on examination of dural membrane tissue adjacent to the fracture site, but even access to the dural tissue was incomplete. Dr. Leestma testified that "periosteum," "growing bone" and "osteoblasts" at the site of the fracture the midline showed the fracture was "weeks old." 9:105-10. Exhibit 94 consisted of microscopically magnified photographic images of a specimen of the epidural surface of the dura. The specimen was taken by Dr. Leestma from the left occipital-parietal area, at the location where the skull fracture crossed the midline. These slides showed periosteum, "growing bone", and "osteoblasts" on the epidural side of the dura. 10:185-6. Such "reaction" or healing process could not have occurred during the five days that Matthew lived after being hospitalized. Rather, this epidural reaction takes "weeks" to occur. 10:186-7. Drs. Baden, Gean, Ommaya and Uscinski testified that Dr. Leestma’s neuropathological finding provided unequivocal proof that the skull fracture was "weeks old". 11:169-70; 12:107; 12:276; 13:23-4. On direct examination, prosecution neuropathologist Dr. Umberto De Girolami acknowledged that in one of Dr. Leestma's specimens there was "periosteum" on the epidural surface that showed a "roughening" and "thickening" of dura. 5:21-2, 30. When asked the significance of this finding, Dr. De Girolami agreed "it has to be explained somehow," though he didn't know "the answer" or "what significance this finding has." 5:30.¹⁵
Dr. Leestma also presented microscopic evidence of neomembrane formations, large capillaries, small capillary networks, fibroblasts more than 15 layers thick, calcium formation, and other recognized indicators of an old subdural on the opposite side of the skull from the fracture, in the left inferior tentorium, and the mid-sagittal sinus.¹⁶ While Commonwealth witnesses Barnes and Newberger agreed with defense witnesses that infants get bilateral subdurals at different locations from one impact (4:79-80; 7:134-5), the principal way the prosecution sought to evade damage to its neuropathology case was to capitalize on the absence of crucial evidence -- missing clot and right parietal dura -- brought about by the improper acts of its own witnesses. Dr. Madsen testified the "solidified clot" on the right side (3:79) which "squalled out" (3:79) and "would have fallen apart on the floor (3:92) looked acute (fresh) to his naked eye, but he did not save it for microscopic analysis, in violation of hospital specimen preservation rules. 3:87.¹⁷ All witnesses agreed microscopic analysis is far more reliable than gross observation at surgery as to age of clot and existence of formative membranes. 9:134-6; 11:14-16; 12:178-9; 12:308-9.
Dr. De Girolami’s flip-flop testimony about missing dura was of critical importance. On September 25^th, just prior to trial, Dr. De Girolami testified at the missing tissue hearing that he saw brown spots on the left parietal and right parietal areas, personally made squarish cut-outs 3 by 4 centimeters of both sides of the dura, then discarded the left-side square and most of the right parietal square except for one small strip. Tr. 9/25/97 at 170-2. He also maintained at trial that this whole procedure, including the disposal of cut but unsectioned dura, was his usual practice. 5:97. However, having learned at the hearing, to his understandable embarrassment, that he had discarded evidence in violation of an explicit court order (Tr. 9/25/97 at 172), Dr. De Girolami took a completely different position at trial: (1) he did not know what happened when the dura was cut, although he was present (5:103-4); (2) he didn’t do the cutting -- Dr. Anthony did (5:101-2); and (3) he claimed, based upon his re-examination of the remaining dura (Ex. 57), that no dura appeared to be missing or thrown away after all.¹⁸ 5:146.
The prosecution relied on testimony of the presence of bi-lateral retinal hemorrhages at the time of Matthew’s hospital admission as evidence of shaken/impact syndrome. Prosecution ophthalmologist Dr. Lois Smith conceded, however, during cross-examination that the fundamental assumption underlying her opinion was her "speculation" that the February 4^th pre-surgery funduscope examination result by hospital ophthalmologist Dr. Diamante was wrong – he, according to Dr. Smith, must have failed to see the perimacular folds and deep retinal hemorrhages that must have been there at admission. 6:69. Dr. Smith persisted in this position even when confronted with evidence from Dr. Mandl, the Emergency Room pediatrician, that the initial eye exam occurred under very good conditions for clear observation. 6:68-70. If the emergency room ophthalmologists’ funduscope drawings were accurate – showing, as they did, hemorrhages and folds after, but not before, surgery – then Dr. Smith’s diagnosis of shaken/impact syndrome based upon the presence of such hemorrhages at admission would have been without basis, for these symptoms would have been caused by the surgery itself. She chose to ignore this data and to stick by her diagnosis.¹⁹ 6:69.

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT REFUSED, IN RESPONSE TO THE JURY’S SPECIFIC AND REPEATED REQUEST FOR A READ-BACK OF ‘CRITICAL’ TESTIMONY, TO PROVIDE EITHER THE READ-BACK OR A RESPONSE TO THE JURY’S QUESTION AS TO HOW LONG IT WOULD TAKE TO FILL ITS REQUEST.

The jury, during deliberations, requested a read-back of part of the testimony of prosecution witness Dr. Joseph Madsen. The requested testimony, which the court allowed to be read-back, focused on Dr. Madsen’s description of the fluids that emerged upon his puncturing the dura during neurosurgery, the first of which he said was "serum." 17:7.²⁰ However, despite Dr. Madsen’s observation of serum at the injury site, he nonetheless, elsewhere in his testimony, had expressed disagreement with the central defense contention that the injury was old.²¹ Thus, while the jury was interested in Dr. Madsen’s observation of serum, it realized that he did not associate serum with old injury.
Having heard the prosecution witness, the jury promptly sought to re-hear the testimony on the implications of serum of the defense witness, Dr. Jan Leestma, who had testified 10 days earlier. When told that the testimony of Dr. Leestma, unlike that of the prosecution witness, had not been transcribed, the jury pressed its request, telling the Court that the testimony was "critical to advance deliberations" and asking for "an estimate of how long [it] would take" to transcribe. 17:39.
Defense counsel proffered a number of alternatives by which the Court could satisfy the request (17:21-39), and asked that the Court at least inform the jury how long transcription would take. 17:38.²² The judge understood that the requested "critical" testimony would have been favorable to the defendant²³ yet turned down counsel’s requests (1) to have the Court Reporter prepare the expedited transcript overnight at the defendant’s expense (17:31-32), (2) to proffer to the jury a videotape of the testimony that had been made by Court Television (17:29),²⁴ and (3) even to answer the jury’s question how long it would take to prepare a transcript. The Court instead told the jury it would take "quite a while" and hence "we are really not in a position to respond to your request." 17:39.²⁵ The Court did not even tell the jury of the availability of the Court TV videotape nor of the Court Reporter’s audiocassette.²⁶ Each refusal to satisfy the jury’s "critical" need constituted an abuse of discretion in light of (1) the ease with which the problem could be solved, (2) the adamance of the jury’s demand for a transcript and information on the amount of time needed so it could itself decide whether to wait, and (3) the importance of Dr. Leestma’s testimony to offset Dr. Madsen’s assurances that the injury was acute notwithstanding his having seen serum. The defendant's state and federal due process and jury trial rights entitled her to balanced and informed jury deliberations, and also to have the jury - not the judge - weigh its need for the testimony against any delay in preparing a transcript or the option of getting the testimony in video or audio format. Deprived of this information at the most critical stage, the jury convicted.
"[T]he furnishing of a transcript to a deliberating jury is discretionary," although this power "is to be cautiously exercised." Commonwealth v. Bianco, 388 Mass. 358, 370 (1983), citing Commonwealth v. Mandeville, 386 Mass. 393, 405 (1982); see also Commonwealth v. Stockwell, 426 Mass. 17, 24 (1997, and Commonwealth v. Richenburg, 401 Mass. 663, 675-6 (1988). This Court warned in Bianco that a trial judge may refuse a jury’s request for a transcript when "the reading of testimony may . . . overemphasize certain aspects of the case." 388 Mass. at 370. However, the danger of such overemphasis is mitigated, said the Court in Mandeville, where "both the direct and cross-examinations of the witnesses [are] read in their entirety." 386 Mass. at 405-6. Here, the jury, having heard from the prosecution witness, now wanted to hear from the defense expert.
The Court of Appeals for the First Circuit has a similar standard:

The factors the judge should consider in responding to a jury’s expressed desire to rehear testimony include whether the request is "reasonably well-focused," whether there is any "physical or logistical impairment to reading" the testimony back, and the amount of time the procedure would probably consume.

United States v. Argentine, 814 F.2d 783, 787(1st Cir. 1987); United States v. Akitoye, 923 F.2d 221, 226 (1st Cir. 1991); United States v. Argencourt, 996 F.2d 1300, 1305 (1st Cir. 1993). In Akitoye, the Court noted that where "the trial was brief and the testimony fresh in the jurors’ minds," this "ordinarily lessens the need for rereading." 923 F.2d at 226.
Here, there was no danger that reading back Dr. Leestma’s testimony would unfairly "overemphasize" some aspect of the case, since (1) the prior read-back established that serum was present at the site of the injury, (2) the government witness had denied that serum meant old injury, and (3) the jury now wanted to know the defense witness’ explanation for what the presence of serum meant. Thus, the read-back of Dr. Leestma’s testimony, far from "overemphasizing" one aspect of the evidence, would have rounded out the jury’s picture by presenting the countervailing defense version. The read-back of one witness without the other created an unfair "overemphasis" in favor of the prosecution. Commonwealth v. Mandeville, 386 Mass. 393, 405.
The jury’s request was "reasonably well focused": "May we please hear Dr. Leestma’s testimony which refers specifically to serum (direct, cross, redirect, recross)?" 17:19. Retrieval was easy, without "physical nor logistical impairment." The trial judge’s notes and defense counsel’s notes agreed on the two places where Dr. Leestma discussed "serum." 17:21-22. The Court Reporter informed the Court "that she can probably, without a great deal of expenditure of time, locate those two particular items." 17:21.²⁷ If the entire transcript were necessary to enable both sides to locate other arguably responsive portions, because Dr. Leestma had testified for only "parts of two days" (A-533) and counsel offered to pay for expedited copy (17:31-32), it could have been ready sometime the next day. A videotape with electronic search capacity, and the official audiotape, were immediately available. 17:29.
Unlike in United States v. Akitoye, the trial was not "brief" and the testimony obviously was not "fresh in the jurors’ minds." 923 F.2d at 226. As in United States v. Argencourt, "the [testimony] the jury sought to revisit was the most significant piece of evidence presented by the [defense]," 996 F.2d at 1305-6, since the presence and implications of serum was the defense's only remaining avenue to clear proof of aged injury that was unhampered by missing or discarded evidence (the skull, the blood clot, dural tissue). Dr. Leestma’s testimony concerning the process by which a subdural hematoma heals and the significance of serum in that process, was vital:

It’s the natural history of a subdural hematoma to eventually be enclosed in a membrane, and the contents within that membrane to gradually disappear. Red blood cells gradually disappear, capillaries form, and they leak. They leak serum which is the liquid part of our blood minus the cells. It’s a yellow proteinaceous straw-colored fluid. And that is the content of a subdural once the blood has gone away.

9:139. He testified that the presence of serum indicated a healing process at least three weeks old. 9:58-62; 10:186. Had his testimony on this single point been recalled, understood and credited by the jury, an acquittal would have been the only proper verdict, since the Court had instructed that the jury could convict only if satisfied beyond a reasonable doubt that the defendant inflicted the fatal injury on February 4th. 15:128-9.
Such disparate treatment of the testimony of two key witnesses on a critical issue is frowned on in any context. In Commonwealth v. McDuffie, 16 Mass. App. Ct. 901, 1018 (1983), the Appeals Court, citing both Bianco and Mandeville, supra, reversed a rape conviction because the trial judge admitted into evidence a hospital report containing "a written account of only the victim’s version of the incident." Similarly, in a witness competency hearing, the Court noted that notwithstanding that the trial judge has discretion to conduct such a hearing on his own, once he allows the prosecutor to participate by asking questions, "it offends fairness to allow one side to draw out that which is favorable for its purposes, but to bar inquiry by the other side entirely." Commonwealth v. Doucette, 22 Mass. App. Ct. 659, 664 (1986) (dictum).

II. THE TRIAL COURT ERRED BY REFUSING TO DISMISS THE INDICTMENT OR PRECLUDE CERTAIN EXPERT TESTIMONY, BECAUSE DEFENDANT WAS NOT PERMITTED TO CONDUCT A DEFENSE AUTOPSY, WHICH IN TURN LED TO THE DESTRUCTION OF EXCULPATORY EVIDENCE, DEPRIVING HER OF HER DUE PROCESS RIGHT TO PRESENT AN EFFECTIVE DEFENSE.

While the defense was able to marshal powerful scientific evidence establishing that the skull fracture and subdural hematoma were "weeks old," defense experts were unfairly deprived of an opportunity to gather even more direct, incontrovertible proof of innocence. Indeed, this case would not have proceeded to trial, much less resulted in a conviction, if: (a) the Newton District Court, acceding to opposition by the Commonwealth, had not improperly denied the defense's timely request to conduct a second autopsy (A-17); (b) pictures of the skull fracture showing "lipping" (early healing) had not been suppressed until the trial's penultimate day (A-395-397); and © the dura had not been cut and crucial pieces destroyed in violation of the tissue-preservation order. Tr. 9/26/97 at 3-4.
Where material evidence is destroyed or suppressed after specific timely defense requests and a judicial preservation order, this Court has held that dismissal or preclusion is available, depending on whether, and to what degree, the evidence would have been "potentially exculpatory." Commonwealth v. Henderson, 411 Mass. 309 (1991); Commonwealth v. Olszewski, 401 Mass. 749, 757(1988), affirmed after re-trial, 416 Mass. 707, 715 (1993); Commonwealth v. Gliniewicz, 398 Mass. 744, 749 (1986). Ordinarily, the loss of material, potentially exculpatory evidence presents "serious challenges to the courts' decision-making process" because they "face the treacherous task of divining the import of materials whose contents are unknown." Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 20 (1993), quoting California v. Trombetta, 467 U.S. 479, 486 (1984). Here, however, given the powerful scientific proof of an "old" injury produced by defense experts using still-available physical evidence, this conviction cannot stand because there is not just the required "reasonable possibility," but a very strong probability, that highly material destroyed or suppressed evidence (missing dura at the site of the subdural, and the skull fracture itself) would be exculpatory and dispositive; hence, dismissal is warranted. Commonwealth v. Neal, 392 Mass. 1, 12 (1984); Commonwealth v. Sasville, supra, at 27-8. The belatedly disclosed autopsy photographs showing the fracture's "lipped" edges (A-396, 397; 14:148),²⁸ and Dr. Leestma's uncontroverted finding of new bone growth in the dura at the fracture site (10:185-186), raise a very strong probability that microscopic and x-ray examinations of the fracture itself would have conclusively proven that the fracture did not occur on February 4th. Similarly, Dr. Leestma's specimens from the left side of the dura and of the tentorium, showing neomembranes, mineralization and other cellular signs of an old subdural (9:58-62, 82-92), establish more than a mere "reasonable possibility" that the destroyed dura adjacent to right-side subdural would have been exculpatory. For these reasons alone,²⁹ dismissal is the appropriate remedy. Commonwealth v. Sasville, supra, at 20-21. If, however, this Court believes further proceedings are necessary, the conviction should be reversed, suppression ordered of testimony from prosecution witnesses Feigin and De Girolami about their "hands-on" observations of the dura and skull fracture which they then discarded, and a hearing held for further consideration of the dismissal remedy depending upon the feasibility of exhuming Matthew Eappen’s body and conducting microscopic and x-ray examination of the skull fracture. If exhumation proves unable to supply the needed evidence, dismissal would remain the only remedy.
A. Denial of Defense Autopsy
Dr. Feigin conducted the autopsy's initial stage on February 10, 1997, removed the brain and other organs, and then shipped the body to UMass.-Worcester's Dr. Paul Kleinman, who the next day took x-rays of virtually every bone except, amazingly enough, the fractured skull. Tr. 9/25/97 at 60-5. The motion for a defense autopsy was filed and denied on that same day, February 11th. A-17. The Medical Examiner’s office did not release the body for burial until February 13th. A-390.
The prosecution opposed the timely motion for a defense autopsy on two grounds: It claimed that the court lacked power to order a defense autopsy, based on statutory and separation-of-powers grounds, and that the parents, even before obtaining custody of the body, could veto a defense autopsy. A-19. Though it denied the defense's motion, the District Court prohibited destruction of tissue obtained from the autopsy. A-27.
The Commonwealth’s groundless arguments were similar to its prejudicial conduct in Sasville; its obstructionist tactics opposing defense access to the body deprived it of "potentially exculpatory evidence." Nothing in the Medical Examiner statute, G.L. c. 38, bars a second autopsy. To the contrary, discovery rules and constitutional law assure the defendant's right to subject crucial physical evidence to timely tests of her experts’ choosing before it is released from state custody. Commonwealth v. Sasville, supra; see Commonwealth v. Olszewski, 401 Mass. at 757; Commonwealth v. Gliniewicz, 398 Mass. at 749 (1986).
Though no one could possibly fail to see the materiality of the fractured skull in a case alleging homicide by head injury (see Sasville at 23-24), it was nonetheless released for burial. Tr. 9/25/97 at 114. Inexcusably, the Commonwealth did not disclose photographs of the skull fracture, showing "lipped" edges, until the last day of trial. This was the first time that the defense had adequate close-up pictures of the fracture itself to demonstrate specifically that healing processes in the skull bone were sufficiently advanced such that microscopic examination of the "lipped" edges would definitely yield exculpatory evidence of old injury. Even after the tissue preservation order issued, the Commonwealth conducted destructive examination of the dura without notice to the defense nor court approval. The Commonwealth's conduct here was more culpable and prejudicial than that which justified suppression in Gliniewicz at 749, and dismissal in Sasville at 23-5.
1. Microscopic Examination of the Skull Fracture for Histological Evidence of Healing. The prosecution’s witnesses — Dr. Cleveland, a radiologist, and Dr. De Girolami, a neuropathologist — agreed with defense experts that such an examination would have been dispositive on the age issue if cellular evidence of healing were found at the edges of the fracture. 3:223-4; 5:36-7. Given the uncontradicted finding of Dr. Leestma that dislodged periosteum in the dura was cellular evidence of a healing process "weeks old," there is more than a "reasonable possibility" that skull histology would have ended this case before trial.
2. Post-Mortem X-rays of the Skull Fracture. Dr. Baden testified that autopsy x-rays of the skull fracture should have been done because, in contrast to in vivo x-rays, they provide clearer images. 14:186. Besides, if the fracture were available, jurors could have judged for themselves whether the edges were sharp (hence acute injury) or lipped (chronic), without having to credit the self-serving testimony of Dr. Feigin (4:247-50), who discarded the fracture and then claimed that his gross examination -- unaided by x-ray and unrebutted by an examination by a defense pathologist -- showed no sign of old injury.
3. Neuropathological Examination of Destroyed Dura. Defense experts did not have an opportunity, prior to destructive cutting by the state, to examine the intact dura nor to perform neuropathology examination of dura from the crucial right parietal area, the site of the fatal subdural, nor from the left parietal area, which Dr. Leestma's other findings show would have provided confirmation of a "weeks old" injury. This deprivation of a "hands-on’ opportunity for defense experts to examine the uncut dura at a defense autopsy was prejudicially exploited by the prosecution’s assertion, in closing argument, that defense findings were suspect because they were not hands-on: "Those three [state neuropathologists] were hands-on; they saw the brain. Jan Leestma obtained some slides weeks to months later, and all of a sudden he finds neomembranes." 15:72. The defense objected to the unlawful cutting of the dura and sought relief, Tr. 9/25/97 at 242, but the Trial Court refused to dismiss the indictment or to suppress Dr. De Girolami's testimony. Tr. 9/26/97 at 2-5; 4:269-271; 284-289. This was error. Commonwealth v. Gliniewicz, 389 Mass. at 747-9 (absent notice to the defense, state's destructive testing of evidence subject to court order prejudicial).
4. Examination of Subgaleal (Scalp) Tissue. Defense experts had no opportunity (a) to examine the subgaleal (scalp) hematoma Dr. Feigin believed was caused by the same recent trauma that caused the fracture, nor (b) to incise the tissue between that site and the surgical site in order to corroborate proof from the CT scans that this hematoma was caused by the surgery rather than by a blow. 13:19-22.
B. Late Disclosure of Skull Fracture Photograph
The gross negligence of the ME’s office, and the severe prejudice it inflicted, were illustrated on the last day of evidence when 18 photographs were produced, including two close-ups showing "lipping" at the edges of the skull fracture, and normal, not damaged tissue surrounding the fracture. A-395-7; 14:148. This was important evidence, especially in the absence of the skull itself, that the fracture was weeks, not hours old.
This Court has held that where "evidence meeting the constitutional standards for materiality is initially suppressed, but then disclosed, it is the consequences of the delay that matter," Commonwealth v. Lam Hue To, 391 Mass. 301, 309 (1984). In deciding whether counsel could make effective use of evidence that arrived "after his investigation ended, his trial strategy set, and his opening completed," the issue turns on counsel’s ability to use the information to the degree which he would have, had the prosecution acted properly." Id. at 309.
The eleventh hour disclosure had severe consequences. First, only Dr. Baden was permitted to testify about the photographs, although Dr. Leestma too was available. 14:137. Second, Dr. Baden was not allowed to point out the undamaged tissue surrounding the fracture site that indicated old injury, without eliciting prosecution rebuttal. 14:153. This ruling was erroneous and prejudicial, because rebuttal would have once again allowed the Commonwealth to benefit from its evidence destruction and belated disclosure. Third, timely production of the photographs would have been a basis for a motion to exhume the body, since they provided a sufficient degree of confidence that exhumation and histological analysis of the fracture's edges would provide definitive evidence of a "weeks old" fracture.³⁰ This being so, if this Court deems further proceedings necessary to decide whether to order dismissal or preclusion, it should remand for a hearing on exhumation and remedy.³¹
C. Missing Dura
The defense relied on the destruction and disposal of dura as a basis for dismissal or testimonial preclusion. Tr. 9/25/97 at 242. After taking evidence, the Trial Court found that sections of dura had been unlawfully discarded (Tr. 9/26/97 at 3-4), but it refused to dismiss, or even to preclude prosecution testimony based on examination of subsequently disposed tissue. 4:271.
The materiality of an opportunity to examine the entire dura, especially the missing dura at the site of the fatal right parietal subdural hematoma, is self-evident, particularly in the absence of either the skull or the clot. Dr. Leestma produced slides from "brown spots" on the remaining dura reflecting subdural hematomas "weeks old" (a third layer of dura, more than 15 layers of fibroblasts, capillaries, and calcium). This scientific data supported the defense theory of an old injury from one accidental event. Indeed, prosecution witnesses agreed with defense witnesses that infants under one year old can experience multiple subdural hematomas located at different places on the dura, as well as a skull fracture, from one low impact fall, without losing consciousness or showing symptoms for weeks.³²
The Commonwealth’s culpability for destruction of critical tissue, especially in the face of a court order, is clear.³³ The Trial Court erroneously rejected defendant’s proposal to preclude testimony from Drs. De Girolami and Feigin about their observations that the right parietal dura, unavailable to defense experts, showed no sign of a weeks old injury. 4:269-71. The prosecution exploited their unfair advantage in closing argument by avoiding all substantive discussion of Dr. Leestma’s dura slides, which showed clear evidence of old injury, except to say that Leestma could produce no evidence of injury from the critical right parietal area, from which dura tissue was missing. 15:72. The Trial Court’s tepid instruction -- that the jury might draw a negative inference that missing tissue, if the jury found it to be missing, might be favorable to the defense (15:161-3) -- fell very far short.

III. THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY THAT MALICE AFORETHOUGHT REQUIRES PROOF THAT THE DEFENDANT WAS AWARE OF THE LIFE-ENDANGERING RISK POSED BY HER CONDUCT.

The prosecution never alleged that Ms. Woodward intended to kill Matthew Eappen nor even that she intended to cause him grievous bodily harm; nor was the jury instructed on those theories of malice aforethought. Her murder conviction rested instead on a finding that "she intentionally performed an act or acts which, in the circumstances as she then knew them, created what a reasonably prudent person would have known was, according to common experience, a plain and strong likelihood that Matthew Eappen would die as a result." 15:129-30 (emphasis added). Under this theory, referred to as "the third prong of malice," Ms. Woodward was convicted of murder without proof that she even realized her conduct posed a risk of death. Her actual state of mind with respect to Matthew Eappen's life or death was made entirely irrelevant by the judge's charge.
To convict a person of murder regardless of her actual state of mind with respect to the risk posed by her conduct violates what this Court has called the "fundamental" common law principles underlying the homicide grading system. These principles are first, that "criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result," Commonwealth v. Catalina, 407 Mass. 779, 785 (1990), quoting Commonwealth v. Matchett, 386 Mass. 492, 506-07 (1982), and second, that "a person's criminal liability for an act should be proportioned to his or her moral culpability for that act." 407 Mass. at 785-6.
Third prong malice is completely inconsistent with these principles. As Justice Holmes explained in Commonwealth v. Pierce, third prong malice rests on the notion that "an act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it," and that a person's "failure or inability to predict [the consequences of his actions] is immaterial." 138 Mass. 165, 178 (1884).³⁴ Third prong malice divorces law from morality by making moral culpability for a death -- as reflected by the defendant's actual "mental state [with] respect to that result" -- irrelevant to criminal punishment. Id. at 176³⁵
Third prong malice is essentially a "wild card" for the prosecution to use whenever it can not prove the other forms of malice. However, because it exists in opposition to the principles underlying the rest of the homicide grading system, third prong malice can lead, as it did in this case, to disproportionate and irrational results. Ms. Woodward was branded and punished as a murderer even though she lacks the moral culpability of one who intends to kill or cause grievous bodily harm or who acts with conscious indifference to a risk to human life. In fact, she was convicted of murder even though her mental state may have been less culpable than the mental state required for manslaughter. The disproportionality and irrationality of her murder conviction, as described more fully below, violates not only the common law, but also the equal protection and due process guarantees of the state and federal constitutions.³⁶
This Court has never affirmed a murder conviction in a case such as this, where third prong malice was the only theory of malice submitted to the jury. In the vast majority of murder cases in which third prong malice was discussed by this Court, the murder conviction was either reversed,³⁷ or affirmed based on a different theory of malice.³⁸ In a line of cases beginning with Commonwealth v. Starling, this Court affirmed murder convictions only after concluding that, in addition to finding the requirements of third prong malice, the jury could have inferred that the defendant "foresaw serious injury." 382 Mass. 423, 426 (1981).³⁹ This case presents the Court with an opportunity to revise the doctrine of third prong malice to require that the question of whether the defendant actually foresaw the risk to the victim be put to the jury. Only then will the doctrine be in line with the proportionality principle of Matchett and Catalina and with the rest of the homicide grading system.

A. Ms. Woodward's Murder Conviction is Disproportionate to Her Moral Culpability Because Third Prong Malice is Not the Moral Equivalent of the Other (Subjective) Forms of Malice Aforethought.

In Matchett, this Court granted a new trial because it found that the jury instruction on felony murder did not require proof of the "relation of the perpetrator's state of mind to the homicide." 386 Mass. at 507. Reasoning that "the felony murder rule is based on the theory that the intent to commit the felony is the equivalent to the malice aforethought of murder," the Court held that the jury should have been instructed of the government's burden to prove that the felony (extortion) "involved circumstances demonstrating the defendant's conscious disregard to the risk to human life." Id. 507-08. Without a finding that the defendant consciously disregarded the risk to human life, intent to commit the felony of extortion is not the "equivalent" of the other forms of malice.⁴⁰
The third prong malice instruction given in this case did not require proof that Ms. Woodward was aware of a risk to human life, much less that she consciously chose to disregard such a risk. Rather, the jury was told it could convict Ms. Woodward if it found that, under circumstances known to her "a reasonably prudent person would have known" the risk of death. 15:129-30. This standard -- essentially negligence with respect to the risk of death -- cannot be said to be the "equivalent" of the other forms of malice.⁴¹ Where the defendant was unaware that her conduct posed a risk of death to another person, she cannot be said to have possessed the hardness of heart, cruelty, or depravity -- the culpability -- of one who intended to kill or to cause grievous bodily harm, or of one who acted with conscious indifference to a risk to human life.⁴² To convict Ms. Woodward of murder without regard to her actual state of mind vis-a-vis Matthew Eappen's life or death is to erode the "the relation between criminal liability and moral culpability" on which criminal justice depends. Matchett, 386 Mass. at 507, quoting People v. Washington, 62 Cal.2d 777, 783, 44 Cal. Rptr. 442, 402 P.2d 130 (1965).⁴³

B. Ms. Woodward's Murder Conviction is Disproportionate and Irrational Because Third Prong Malice Makes Murder Virtually Indistinguishable from Involuntary Manslaughter.

The proportionality principle applied by this Court to the homicide grading system requires not only that defendant's mental state with respect to the result be morally "equivalent" to the other forms of malice aforethought for murder, but also that it be morally distinguishable from the mental state required for manslaughter. In Catalina, this Court abandoned the unlawful act manslaughter doctrine except in situations where the defendant commits a battery under circumstances where a reasonable person would have known his conduct "endangers human life." 407 Mass. at 788. To distinguish this form of manslaughter from felony murder, the Court used a mental state that is less culpable than the mental state for felony murder in two respects. First, intent to commit a battery not amounting to a felony is obviously less culpable than intent to commit a felony. Second, the objective reasonable person standard is less culpable than the felony murder standard of conscious disregard of the risk to human life. Requiring proof of intent to commit a felony and consciousness of the risk of death for murder, but not for manslaughter, comports with the principle that punishment for homicide should be proportioned based on the defendant's mental culpability for the victim's death.
Third prong malice exists in sharp contrast to the proportionality principles that guided this Court in Matchett and Catalina. The intent required for third prong malice (general intent to act) is less culpable, not more culpable, than the intent required for involuntary manslaughter on the theory of battery causing death. Commonwealth v. Ford, 424 Mass. 709, 712 (1997) (holding that general intent to act is lower than the mens rea of battery, which is intent to touch).
Moreover, with respect to the objective risk of death, since third prong malice uses the same reasonable person standard as involuntary manslaughter, the only difference between these theories of murder and manslaughter is the objective degree of risk involved: third prong malice requires proof of a "plain and strong likelihood of death," Starling, 382 Mass. at 426,⁴⁴ while involuntary manslaughter requires proof that the defendant's battery "endangers human life." Catalina, 407 Mass. at 788.⁴⁵ The slight difference between these objective risk assessments -- to the extent the difference can be articulated by judges or understood by juries in a meaningful way -- is far too slim a reed to distinguish murder (and the resulting mandatory sentence of life imprisonment) from manslaughter. Starling, 382 Mass. at 423, 430 (Kaplan, J., concurring) ("It is a serious reproach to the administration of criminal justice in this Commonwealth that in the trial of a grievous offense with high penalty a jury may have to proceed under so feeble a light.").⁴⁶ For the homicide grading system in this Commonwealth to be proportional, rational, and consistent with the common law principles articulated by this Court, the distinction between the malice aforethought required for murder and the mens rea for manslaughter must turn, not on objective factors alone, but rather, on the culpability of the defendant's subjective state of mind with respect to the result. As it did in Matchett and Catalina, this Court must bring third prong malice in line with these principles and with its recent decisions by holding that, at a minimum, malice aforethought requires subjective awareness of the risk of death. Catalina, 407 Mass. at 788; Matchett, 386 Mass. at 492.⁴⁷

C. The Trial Court's Failure to Instruct the Jury that Subjective Awareness of the Risk of Death is Required for a Murder Conviction Was Prejudicial in this Case.

Where, as here, the trial judge erroneously instructs the jury on an essential element of the offense, prejudice is presumed and the conviction must be reversed absent a showing by the Commonwealth that the error was harmless beyond a reasonable doubt. Commonwealth v. Rios, 412 Mass. 208, 214 (1992); Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984); Commonwealth v. MacDonald, 368 Mass. 395, 399 (1975). The Commonwealth cannot make a harmless error showing in this case.⁴⁸
This Court has never affirmed a murder conviction based on third prong malice in a case where, as here, third prong malice was the only theory of malice aforethought submitted to the jury and thus the only theory which could have been the basis for the defendant's murder conviction. The prosecution never alleged that Ms. Woodward intended to kill Matthew Eappen or to cause him grievous bodily harm. Indeed, the prosecutor specifically argued the contrary to the jury. 15:103-04. Since the case was neither tried nor submitted to the jury on any theory of malice other than third prong malice, it would be entirely speculative for this Court to try to imagine what a properly instructed jury would have done.⁴⁹
In any event, a properly instructed jury could have had a reasonable doubt about whether Ms. Woodward acted with conscious disregard for a risk to human life. The record contains evidence that Ms. Woodward was unaware that she posed any risk of death to Matthew Eappen. (13:114, 236). In fact, the record as a whole raises a serious question about what act of Ms. Woodward's, if any, caused Matthew Eappen's death. For these reasons, the question of whether Ms. Woodward caused Matthew Eappen's death with conscious disregard for a risk to his life cannot be resolved as a matter of law but must be presented to a properly instructed jury. A jury could well find, as Judge Zobel did after hearing all of the evidence, that Ms. Woodward lacked "malice (in the legal sense) supporting a conviction for second degree murder." A-539.

IV. THE SPONTANEOUS, SUPPLEMENTAL JURY INSTRUCTION RELIEVED THE COMMONWEALTH OF THE BURDEN TO PROVE EVERY ELEMENT OF THE OFFENSE, ESPECIALLY CAUSATION.

The conviction is invalid if the jury instructions could be understood by a reasonable juror to relieve the Commonwealth of its burden to "prove[] beyond a reasonable doubt every element of the charged offense." Commonwealth v Skinner, 408 Mass 88, 92 (1990), quoting Carella v California, 491 U.S. 263, 265 (1989). In the main instructions on the previous day, the jury was instructed in mandatory terms that, in order to prove murder, the Commonwealth's burden was to prove: (1) that the defendant's act(s) on February 4, 1997 caused Matthew Eappen's death, (2) the absence of legal justification or excuse, and (3) malice. 15:127-130. The jury deliberated on October 28, 1997 without returning a verdict. When Court opened on October 29^th, there was no question from the jury pending. Without notice to counsel that further instructions were imminent, the Court addressed the jury extemporaneously:

     Now, you will resume your deliberations. And as I said before, how you do it is, of course, entirely up to you. Let me make this suggestion though. You may find it convenient to deal with the case in stages, deal with the elements in stages. Thus, you may wish to decide whether the Government has proved beyond a reasonable doubt that the act or acts of the defendant were the cause of the death of Matthew Eappen. That is, but for the acts or act of the defendant, the death would not have occurred. You may wish to consider that issue first, and then to proceed, depending on what your answer is to that issue, to the next issue, which is the state of mind of the defendant at the time, and then to the question of extreme atrocity or cruelty.
     I'm just suggesting that that is a way of approaching the matter, because depending on your answer to each of the questions, you then may or may not go on to the next question. Do you all understand what I'm saying? It may just be a little easier to approach it in a systematic way. But, again, that's just a suggestion and you're entitled to approach the issues in the case any way you wish.

16:4-5 (emphasis supplied).
Defense counsel objected that this spontaneous, additional instruction did not state that, if the jury adopted the Court's "suggestion," acquittal was mandated in the event that it decided that either causation or malice was not proven. The Court responded that its additional instruction communicated this to the jury implicitly, and rejected the defense's protestation that such a fundamental proposition cannot be left to implied communication. 16:8-9. While the Court appeared to have overruled the objection on the merits, the Court also stated that the objection should have been noted before the jury was excused. For the latter reason, the defense renewed this objection, orally and in writing, (A-444; 16:10-21), urging the court to cure the previously mentioned objection, and its failure to mention that the causation issue related exclusively to the defendant's act(s) on February 4^th. Otherwise, as defense counsel explained, the supplemental instruction could be understood by a reasonable juror to mean that if, as the defense's evidence tended to prove, a head trauma occurred approximately three weeks earlier, the defendant could be found guilty for, at least in part, inflicting that earlier injury. The Court responded that its main instruction mentioned that the date of the defendant's act(s) referred to in the main charge was February 4th, implying that there was no danger of misunderstanding or confusion because the jury would infer that the supplemental "causation" instruction referred exclusively to the defendant's act(s) on February 4^th. The Court overruled the objections and declined to instruct the jury further. 16:10-21.

A. The Supplemental Instruction Relieved the Commonwealth of Its Burden to Prove Every Element of the Offense.

The above-emphasized portion of the supplemental instruction (see p. 57, supra) could have been understood reasonably to permit the jury -- not merely to choose the order in which it would decide the issues -- but to stray, in its unfettered discretion, from its obligation to acquit the defendant, if either causation or malice was not proven. If "a systematic way" was reasonably understood to mean, as it surely could have been, that the jury could move to the "next question" depending on its unspecified answer to a previous question as to whether an element had been proven, the jury was: (1) entirely free to reject this suggested, "systematic way," if "convenient", or (2) free to go on to the next question or element even if it concluded that the Commonwealth had failed to prove a previously considered element.
The instruction's overbroad invitation to "approach the issues in the case in any way you wish" was certainly erroneous and confusing (see Commonwealth v. Sama, 411 Mass 293, 299-300 (1991)), undermined the presumption of innocence by failing to emphasize the obligation to acquit in the event of a failure to prove causation or malice, and thereby relieved the Commonwealth from its burden to prove every element of the offense, in violation of Article XII of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the U.S. Constitution.

B. The Supplemental Instruction Relieved the Commonwealth of its Burden to Prove Causation.

In this case, a key element was – not as the supplemental instruction put it, "that the act or acts of the defendant caused the death of Matthew Eappen"– that her act or acts on February 4th caused the death. For this reason, before and after the jury was instructed, the defense unsuccessfully requested an instruction which emphasized that the criminal act at issue had to have occurred "on no other day." A-417-18, 444. By its express terms, the spontaneous instruction compounded the refusal to instruct as requested, and relieved the Commonwealth of this critical, temporal aspect of its causation burden. There is no basis to assume that the jury understood that the new instruction left the previous day's causation instruction unmodified in that respect, particularly because the "time box" meant to heighten the prosecution's burden did not receive the requested emphasis in the main charge. For all the jury knew, the temporal limitation mentioned in the Court's causation instruction on the previous day had been removed for some legitimate reason.⁵⁰ This was prejudicial constitutional error, especially because the defense was premised on the theory that Matthew had been injured, but by an unknown person or event at a time prior to February 4th.
In view of the danger that the jury might reasonably have misunderstood that the temporal requirement had been deleted, it was error for the judge to leave unstated his intended reference to the date. See Commonwealth v. Skinner, 408 Mass. at 94 n.3. "[T]he judge's silence on [the date of the injury] 'fell short of providing a comprehensible standard to guide them."' Id. at 94, quoting Commonwealth v White, 353 Mass 409, 425 (1967), cert. denied, 391 US 968 (1968)."
As in this case, the defect in the supplemental instruction in Commonwealth v. Mulica, 401 Mass. 812, 818-19 (1988), impermissibly relieved the Commonwealth of its full burden on an element. The supplemental instruction told the jury that the government's burden was limited to proving that Mulica was not suffering from post-traumatic stress disorder, rather than its full McHoul burden to prove that he did not suffer from any relevant mental disease or defect. Here, the supplemental instruction relieved the Commonwealth of its burden to prove that the defendant's causal act occurred on February 4th by omitting the temporal aspect of the causation element. As in Skinner, the correct description of the Commonwealth's burden in Mulica's main charge did not cure the erroneous supplemental instruction:

[T]he fact that some of the instructions were correct is not determinative because 'we cannot know whether the jury were guided by the correct or incorrect portion of the instruction.'" Commonwealth v Nieves, 394 Mass 355, 362 (1985), quoting United States v. Green, 405 F.2d 1368, 1370 (DC Cir. 1968), aff'd, 424 F.2d 912 (DC Cir. 1970), cert. den., 400 U.S. 997 (1971).

Commonwealth v Mulica, 401 Mass at 818-819 (1988). See Commonwealth v Repoza, 400 Mass 516, 519-20 (1987)(correct instruction does not cure contradictory, incorrect instruction absent explanatory language that "harmonizes," explains and corrects it); Francis v. Franklin, 471 U.S 307 (1985). The lack of explanatory, corrective, harmonizing language remained after repeated defense objections and written requests for a curative instruction.
Because the erroneous supplemental instruction could be understood by a reasonable jury to relieve the Commonwealth of its burden to prove contested elements, the conviction must be vacated because the record precludes a finding of harmlessness beyond a reasonable doubt. Commonwealth v.Curtis, 417 Mass. 619, 635 (1994); Pope v. Illinois, 481 U.S. 497 (1987); Sullivan v. Louisiana, 508 U.S. 275 (1993).

V. THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE GOVERNMENT HAD THE BURDEN OF DISPROVING ACCIDENT.

This Court has repeatedly stated that, as a matter of due process, where the evidence raises the possibility of accident, the judge, on request, is "obliged to charge the jury that the Commonwealth ha[s] the burden of proving beyond a reasonable doubt that the [act] was not accidental." Commonwealth v. Lowe, 391 Mass. 97, 108 (1984); Commonwealth v. Zezima, 387 Mass. 748, 756 (1982); Commonwealth v. Zaccagnini, 383 Mass. 615, 616 (1981); Lannon v. Commonwealth, 379 Mass. 786, 792 (1980), citing Mullaney v. Wilbur, 421 U.S. 684 (1975).
The evidence in this case raised the possibility that the act that caused Matthew Eappen's death was an accident. Both the defense (A-434)⁵¹ and the prosecution (A-404)⁵² submitted written requests asking that the jury be instructed on the relevance of accident, but the Trial Court refused to do so.⁵³ Where, as here, nothing in the judge's charge made the "crucial point that proof of malice depended on proof of the absence of accident," the defendant's conviction must be reversed. Zezima, 387 Mass. at 756; Commonwealth v. Robinson, 382 Mass. 189, 207 (1981) ("the 'critical' part of a constitutionally sufficient charge [i]s that a 'nexus' be established between the elements of the crime charged, and the absence of the particular defense."), citing Commonwealth v. Rodriguez, 370 Mass. 684, 691 (1976). See Commonwealth v. Stokes, 374 Mass. 583, 591 ("this court will bring greater expectations, and consequently more careful scrutiny of the judge's charge as to [accident] in any case where the trial occurred after the date of Mullaney, and particularly after the date of Rodriguez.").
Evidence presented by both the prosecution and the defense raised the possibility that the act that killed Matthew Eappen was an accident. Det. Sgt. Byrne testified that Woodward told him that (1) when she carried Matthew into the bedroom she "tossed him on the bed" (6:173), and (2) when she brought Matthew into the bathroom to give him his bath, she "dropped him on the towel...on the floor."⁵⁴ 6:173. Woodward testified that she told Byrne with respect to the bath that "maybe I wasn't as gentle with him as I could have been."⁵⁵ 13:229. Experts testified that though they could not determine from the physical evidence that Matthew Eappen's injuries were caused by an accident, neither could they rule out that an accident may have caused the skull fracture and subdural hematoma (9:176; 9:181; 11:41; 11:260-261; 12:128-129; 12:290-291); thus, the evidence fairly raised the possibility of accident. The evidence of accident was strong enough that the prosecutor felt it necessary to address it in his closing.⁵⁶ 15:61-62.
Given this record, the Trial Court was obliged to instruct the jury on the prosecution's burden of disproving accident and, more particularly, on the "nexus" between proof of malice and disproof of accident. Zezima, 387 Mass. at 756 (reversing murder conviction in part on this ground). This Court described the Trial Court's failure to establish a nexus between proof of malice and disproof of accident as the "most significant" aspect of the due process violation in Zezima. Id. Here, as in Zezima, nothing in the charge as a whole made the "crucial point that [the government's] proof of malice depended on [its] proof of the absence of accident." 387 Mass. at 756, citing Robinson, 382 Mass. at 207. See Stokes, 374 Mass. at 591. Compare Commonwealth v. Robinson, 382 Mass. at 207 (holding that absence of an explicit instruction on the prosecution's burden of proving duress was offset by language informing the jury that duress negates criminal intent). The charge in this case is even more egregious than the charge in Zezima, where the judge at least made some reference to accident. Id. The Trial Court used the word "intentionally" only once in the entire charge and never mentioned the possibility of finding that the act was done "unintentionally." The failure to mention accident is not cured by the single use of the word "intentionally" in the malice instruction. This case is unlike Lowe, where the jury instruction repeatedly emphasized the government's burden of proving that the killing was "intentional" rather than "that it was not." 391 Mass. at 111 n. 10 (Trial Court used the words "intentionally" or "intentional" at least 12 times). The supplemental instruction's failure to re-state what the Court meant by the defendant's "state of mind" requirement compounded the erroneous failure to mention accident in the main instructions.
The risk that the jury could have been confused about whether or not the government had the burden of proving the defendant acted intentionally rather than accidentally is especially prejudicial in a third prong malice case like this one where the government was already relieved of the burden of proving that the fatal results were intended or even foreseen by the defendant. See Argument III above. For these reasons, the conviction must be reversed. Zezima, 387 Mass. at 756.

VI. UNCONTROVERTED NEUROPATHOLOGY FINDINGS FROM THE DURA, PROVING THE FRACTURE WAS WEEKS OLD, REQUIRES A FINDING OF NOT GUILTY.

Prosecution and defense experts agreed that the fatal subdural hematoma was caused by the same event that fractured the skull. 3:41-2; 4:51-2; 4:100; 7:38-9; 9:188; 11:268; 12:96; 12:272; 13:31. The prosecution claimed that the fracture occurred on February 4th, at most six hours prior to hospital admission, as a result of a violent impact on a fixed, hard surface. 3:58-60; 4:162; 6:21-2; 7:33-4; 7:55-6; 7:105. The defense offered proof that the fracture was about three weeks old. Plainly, if the fracture was old (outside the February 4^th "timebox"), that alone would require a finding of not guilty. Notwithstanding disagreements between prosecution and defense experts on any number of other topics, evidence that definitively resolved the age of the fracture would, necessarily, end the determinative medical controversy and decide the case.
Dr. Jan Leestma produced such evidence. Exhibit 94 consisted of magnified microscopic photographic images of a specimen of the epidural surface of the dura, described in more detail supra at 25-26. These slides demonstrated a "reaction," or healing process that took "weeks" to occur. 10:186-187. All defense medical experts confirmed that this finding provided unequivocal proof that the skull fracture was "weeks old." 11:169-170; 12:107; 12:276; 13:23-24. Dr. Leestma’s finding was not disputed by the prosecution’s neuropathologist, De Girolami, see supra at 26, who also expressed extraordinary esteem for the qualifications and opinions of Dr. Leestma in the field of forensic neuropathology, in contrast to his own.⁵⁷
A defendant is entitled to an acquittal when the evidence, viewed in the light most favorable to the Commonwealth, is insufficient to permit the jury to infer beyond a reasonable doubt the existence of an essential element of the crime charged. Commonwealth v. Latimore, 378 Mass. 671, 679-80 (1979). In making this determination, the Court must decide whether the Commonwealth's proof "deteriorat[ed]" between the time the Commonwealth rested and the close of all the evidence. Commonwealth v. Kelley, 370 Mass. 147 150 n.1 (1976). On an outcome-determinative issue -- the age of the skull fracture -- Dr. Leestma’s crucial finding of periosteum dislodged from the fracture in the dura, causing a reaction that is "weeks old," fatally "deteriorated" the prosecution’s proof. Dr. De Girolami conceded the accuracy of this finding, and the prosecution did not attempt to call witnesses to rebut it. All defense experts, conceded by prosecution witnesses to be distinguished scientists and leaders in their fields, testified that this finding alone proved the skull fracture was old. Indeed, the prosecution did not even address the "periosteum/dura" finding, but instead, without any factual or evidentiary basis whatsoever, dismissed all the defense experts and especially Dr. Leestma, in final argument, as high-priced liars (15:68-69) and, in cross-examination, suggested that Dr. Leestma felt free to lie, because his observations were not observable to the untrained eye. 9:269-270. This kind of inflammatory jury argument, while ethical and shrewd, does not make a dispositive scientific fact go away.
Even viewing all other evidence in the light most favorable to the Commonwealth, there is no factual basis that would permit a reasonable juror to disregard the hard physical evidence presented by Dr. Leestma, that the skull fracture dated from outside the "timebox." The prosecution’s evidence cannot survive a required finding motion when it leaves an essential factual issue a matter for conjecture or surmise. Commonwealth v. Salemme, 395 Mass. 594, 599 (1985); Commonwealth v. Lane, 27 Mass. App. Ct. 527 (1987). Whether inferences from evidence are close enough for the prosecution's case to survive is determined by common sense and experience, Commonwealth v. Chay Giang, 402 Mass. 604, 609 (1988), not the piling of inference upon inference or conjecture and speculation. Commonwealth v. Ferguson, 384 Mass. 13, 18 (1981). The prosecution’s failure to offer any evidence or argument to contradict Dr. Leestma’s evidence from the dura that the fracture was "weeks old," and its failure to produce more than speculation as to how the baby’s head could be slammed directly against a fixed hard surface at 21 miles per hour (the velocity of a 15 feet fall) without breaking skin, creating palpable swelling, or evidencing swelling at the site of the fracture on a sensitive CT scan (the "bone window" scan), requires acquittal.

VII. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO ADMIT THE RESULTS OF HER POLYGRAPH EXAMINATION.

This Court has held that "the reliability of the theory underlying polygraph testing may now be shown by means other than general acceptance in the relevant scientific community . . . .", accompanied by:
proof in a given case that a qualified tester who conducted the test had in similar circumstances demonstrated, in a statistically valid number of independently verified and controlled tests, the high level of accuracy of the conclusions that the tester reached in those tests.
Commonwealth v. Stewart, 422 Mass. 385, 389 (1996).
The Trial Court's finding, that Woodward failed to satisfy the Stewart standard by inadequately establishing Dr. Raskin's proficiency and accuracy as a polygraph examiner, lacks support in the record and hence deprived her of her state and federal due process rights. Prior to the hearing, the Court ordered the parties to file in affidavit form the direct testimony of their expert polygraph witnesses. The hearing began with the Commonwealth cross-examining the defense experts.⁵⁸ Dr. Raskin completed his testimony on the first day, and the Court was informed of his plan to leave Massachusetts that evening to return home to Alaska. Tr. 7/14/97 at 148.
On the second day, at the conclusion of the last witness' testimony, the Court advised counsel for the first time that it had concerns as to whether the defendant's evidence included proof that Dr. Raskin's accuracy and proficiency as a polygraph examiner had been independently verified as required by Stewart. Tr. 7/15/97 at 187-188.
During a colloquy concerning Dr. Raskin's qualifications, and during the oral argument the next day, the defense pointed out that evidence of Dr. Raskin's accuracy and proficiency in polygraph examinations was included in his affidavit. Tr. 7/15/97 at 187-198; Tr. 7/16/97 at 44-71. The defense noted that Dr. Raskin had referenced in, and attached to, his affidavit two studies which he averred demonstrated that his proficiency in conducting polygraph examinations had been established through independent verification and evaluations. A-38-39; Tr. 7/15/97 at 187-188; Tr. 7/16/97 at 50.⁵⁹
In the absence of any evidence contradicting or casting doubt on the accuracy of Dr. Raskin's written testimony or the assertions in the studies submitted with it, the Court nonetheless ruled that the defendant had not satisfied the examiner-reliability prong of the Stewart standard. The reasons for this ruling were that (1) Dr. Raskin was one of the authors in each of the two studies that had been cited, and (2) one of the studies had been co-authored by Dr. Honts, whose "close professional relationship" with Dr. Raskin prevented him from independently verifying Dr. Raskin's work. Tr. 7/16/97 at 99. This ruling was error, as there was no record basis for the Court's finding that Dr. Raskin's position as a co-author in the two studies, or his professional relationship with Dr. Honts, had somehow undermined the independence of the verification of Raskin's work in either study. There was no impeaching evidence that the review of Dr. Raskin's work in either study had not been independently verified; nor did the published report of either study, in evidence, reflect that Dr. Raskin's work had not been subjected to blind, independent verification by an appropriate person. To the contrary, the studies themselves reveal that blind evaluations were used, A-113 (Raskin & Hare Study: "using blind quantitative scoring and blind evaluations"); A-125, (Honts and Raskin Study:"The physiological data were blindly evaluated without knowledge of the case materials or the original examiner's opinion"; "The charts were blindly evaluated by both examiners after an assistant removed all identification from the charts and recoded them."), and the two studies appeared in peer-reviewed journals. A-38-39; A-160. There is no record support for the court's speculation that, because Dr. Raskin was a co-author in each of the studies, and one of the co-authors was his protégé, the independent verification of examiner reliability required by Stewart was lacking.⁶⁰ The defense objected to the Court's unfair speculative finding as well because Dr. Raskin was not cross-examined on this issue. Tr. 7/15/97 at 190-191.
As a result, the defense was deprived of a fair opportunity to present Dr. Raskin's live testimony to resolve the belatedly raised doubts about the two studies proffered as evidence of his proficiency and reliability as an examiner. This unfairness gravely prejudiced the defendant, by depriving her of favorable polygraph evidence to corroborate her trial testimony.

VIII. THE COURT ERRONEOUSLY REFUSED TO QUESTION PROSPECTIVE JURORS AS TO THEIR KNOWLEDGE OF, AND ATTITUDES TOWARD DEFENSE COUNSEL BARRY SCHECK, ON ACCOUNT OF HIS ACTIVITIES AS O. J. SIMPSON'S TRIAL COUNSEL.

Although the Court did not deny that prospective jurors who harbored race-based or other prejudicial feelings about Mr. Scheck because of his participation in the defense of O. J. Simpson in his controversial trial would be disqualifiable for cause, the Court nonetheless refused all questioning about that subject matter. Tr. 9/30/97 at 11-12. Bias concerning a trial participant is a classic basis for challenges for cause. Progner v. Eagle, 377 F.2d 461, 462-63 (4th Cir. 1967). Because the Court expressly stated that it understood that prospective jurors might well have disqualifying opinions and attitudes, including race or gender-based attitudes, toward Mr. Scheck and the defense due to his activities as counsel for O. J. Simpson, it was an abuse of discretion to exclude voir dire questioning. This jury selection procedure error deprived the defendant of her state and federal rights to trial-by-jury and due process.

CONCLUSION AND RELIEF SOUGHT

Louise Woodward unconditionally presses her arguments that she is entitled to a required finding of not guilty (Argument II) or to a dismissal of the indictment (Argument VI). However, in the event this Court rejects those arguments, but then affirms (in the Commonwealth’s appeal, consolidated herewith) the Trial Court’s Rule 25 reduction of verdict and sentence, appellant waives all claims that seek a new trial.
Respectfully submitted,

Certificate of Service

I, Andrew Good, hereby certify that I have this day served the foregoing motion on District Attorney Sabita Singh, 40 Thorndike Street, Cambridge, MA 02141 by causing a true copy of same to be delivered in hand.

____________________________
Andrew Good
Date: January 27, 1998