COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH
No. SJC-07635
COMMONWEALTH,
Appellant,
v.
LOUISE WOODWARD,
Appellee.
ON APPEAL FROM A JUDGMENT AND ORDER
OF THE SUPERIOR COURT
____________________________________________________________
BRIEF OF DEFENDANT-APPELLEE
____________________________________________________________
Andrew Good Barry C. Scheck
BBO #201240 Benjamin N. Cardozo School of Law
Harvey A. Silverglate 55 Fifth Avenue, Room 1701
BBO #462640 New York, NY 10003
SILVERGLATE & GOOD Tel. (212) 790-0368
83 Atlantic Avenue
Boston, MA 02110-3711
Tel: (617) 523-5933
Sharon L. Beckman Elaine Whitfield Sharp
BBO #552077 BBO #565522
Assistant Professor of Law WHITFIELD SHARP & SHARP
Boston College Law School 196 Atlantic Avenue
885 Centre Street Marblehead, MA 01945
Newton, MA 02159 Tel. (617) 639-1862
Tel. (617) 552-0639
Date: February 24, 1998
TABLE OF CONTENTS
TABLE OF AUTHORITIES iv
STATEMENT OF PROCEEDINGS AND FACTS 1
INTRODUCTION AND SUMMARY OF ARGUMENT 1
ARGUMENT 3
I. THE TRIAL COURT'S RULING WAS A PROPER EXERCISE OF SALUTARY AUTHORITY,
GRANTED TO IT BY STATUTE AND THIS COURT TO CORRECT A
DISPROPORTIONATE AND UNJUST VERDICT, AND THE STANDARDS FOR THE
EXERCISE OF THAT POWER SHOULD REMAIN UNCHANGED. 3
A. The Trial Court's Power to Reduce the Verdict to Any Lesser Included Offense Is the
Least Intrusive of Its Rule 25(b)(2) Powers to Vacate or Correct Erroneous or Unjust
Verdicts. 8
B. The Standards for the Exercise of the Verdict Reduction Power and for Appellate Review
Should Remain Unchanged. 11
II. THE TRIAL COURT NEITHER ABUSED ITS DISCRETION NOR COMMITTED AN
ERROR OF LAW BY CONCLUDING THAT THE JURY'S VERDICT WAS A MISCARRIAGE
OF JUSTICE, REDUCING THE VERDICT TO INVOLUNTARY MANSLAUGHTER, AND
IMPOSING THE TIME-SERVED SENTENCE. 16
A. The Record As a Whole Supports the Trial Court's Conclusion That Allowing the Jury's
Verdict to Stand Would Be a Miscarriage of Justice. 16
1. Strength of Exculpatory, Scientific Evidence. 17
a. No Violent Slam Causing Skull Fracture and Subdural Hematoma on
February 4. 18
b. No Violent Shaking. 20
2. The Trial Court's Failure to Emphasize to the Jury That Its Consideration of
Woodward's Guilt Be Confined to Violent Trauma Inflicted on February 4, 1997 21
3. The Commonwealth Destroyed Crucial Physical Evidence. 22
4. Likely Impact on Jury of Parents' Display of Grief While Testifying and
Prosecutor's Appeal to Emotion While Failing to Mention Murder in Final
Summation. 22
5. The Trial Court's Decision to Accept the Defendant's Election Against a
Manslaughter Instruction. 24
6. The Verdict, Which Was Based Exclusively on a Third Prong Malice Instruction,
Should Not Be a Sufficient Basis for a Murder Conviction in Massachusetts, and
Would Constitute Manslaughter in Most American Jurisdictions and in
England. 26
7. The Murder Verdict Was Inconsistent With the Nature and Strength of the
Evidence in Other Child Homicide Cases. 27
B. The Trial Court Neither Abused Its Discretion Nor Committed an Error of Law by
Entering Its Manslaughter Finding. 30
1. Rule 25(b)(2) Permits the Jury Verdict to Be Reduced to a Guilty Finding of Any
Lesser Offense Included in the Indictment, and Is Not Restricted to Lesser
Included Offenses Considered and Rejected by the Jury. 30
2. Woodward's Waiver of Her Right to an Involuntary Manslaughter Instruction Did
Not Include a Waiver of Her Separate Right to Move for a Reduction To a Lesser
Included Offense Pursuant to Rule 25(b)(2) In the Event of a
Guilty Verdict. 33
3. The Trial Court's Findings Are Sufficient to Support the Manslaughter Conviction,
and Even If the Facts Found by the Trial Court Are Only Deemed Adequate to
Support the Lesser Included Offense of Assault and Battery, the Error Prejudices
the Defendant, Not the Commonwealth 35
C. The Sentence Was Lawful, and There Is No Reason for This Court to Exercise Its Powers
of Superintendence or Extraordinary Powers Under G.L. c. 211, § 3.38
CONCLUSION 39
ADDENDUM
TABLE OF AUTHORITIES
CASES
Attorney General v. Industrial National Bank of Rhode Island,
380 Mass. 533 (1980) 34
Commonwealth v. Azar,
32 Mass. App. Ct. 290 (1992) 28, 29
Commonwealth v. Baker,
346 Mass. 107 (1963) 7, 10
Commonwealth v. Beasley,
13 Mass. App. Ct. 62 (1982) 34
Commonwealth v. Bowman,
373 Mass. 760 (1977) 34
Commonwealth v. Burr,
33 Mass. 637 (1992) 38
Commonwealth v. Campbell,
352 Mass. 387 (1967) 36, 37
Commonwealth v. Cardenuto,
406 Mass. 450 (1990) 9
Commonwealth v. Carter,
423 Mass. 506 (1996) 8, 10, 15, 33
Commonwealth v. Catalina,
407 Mass. 779 (1990) 36
Commonwealth v. Cobb,
399 Mass. 191 (1987) 13, 14
Commonwealth v. Cormier,
41 Mass. 76 (1996) 9
Commonwealth v. Doucette,
408 Mass. 454 (1990) 9
Commonwealth v. Dustin,
373 Mass. 612 (1977) 34
Commonwealth v. Gaulden,
383 Mass. 543 (1981) 11, 12, 13, 14
Commonwealth v. Giacomazza,
311 Mass. 456 (1942) 37
Commonwealth v. Jenner,
24 Mass. App. Ct. 763 (1987) 37
Commonwealth v. Johnson,
13 Mass. App. 10 (1982) 5
Commonwealth v. Johnson,
365 Mass. 534 (1974) 5
Commonwealth v. Leaster,
362 Mass. 407 (1972) 5
Commonwealth v. Maskell,
403 Mass. 111 (1988) 16, 33
Commonwealth v. McCarthy,
375 Mass. 409 (1978) 11, 38
Commonwealth v. Merola,
405 Mass. 529 (1989) 28
Commonwealth v. Millyan,
399 Mass. 171 (1987) 11, 12, 25
Commonwealth v. Pagan,
35 Mass. App. Ct. 788 (1997) 30
Commonwealth v. Paniaqua,
413 Mass. 796 (1992) 9
Commonwealth v. Pierce,
138 Mass. 165 (1884) 26
Commonwealth v. Preston,
393 Mass. 318 (1984) 9, 13, 17
Commonwealth v. Roberts,
407 Mass. 731 (1990) 30
Commonwealth v. Sabetti,
411 Mass. 770 (1992) 38
Commonwealth v. Salvati,
420 Mass. 499 (1995) 6
Commonwealth v. Sneed,
413 Mass. 387 (1992) 36, 37
Commonwealth v. Tavares,
385 Mass. 140 (1982) 16
Jackson v. Virginia,
443 U.S. 307 (1979) 9
STATUTES AND RULES
G.L. c. 211, § 3 25, 38, 39
G.L. c. 265, § 13A 37
G.L. c. 278, § 11 4, 5, 8
G.L. c. 278, § 33E 5, 7, 8, 10, 13, 16
Rule of Criminal Procedure 25(b)(2) passim
MISCELLANEOUS
Bedau and Radelet, "Miscarriages of Justice in
Potentially Capital Cases," 40 Stan. L. Rev. 21 (1987) 6
Borchard, Convicting the Innocent: Sixty-five
Actual Errors of Criminal Justice (Yale University
Press: New Haven, 1932) 6
Frank and Frank, Not Guilty
(Doubleday: Garden City, New York 1957) 6
Kenney, "Justice for Bobby Joe," Boston Globe
Magazine 14-57 (February 28, 1988) 6
Kenney, "The Trials of Bobby Joe Leaster,"
Boston Globe 18-27 (July 27, 1986) 6
Radelet, Bedau and Putnam, In Spite of Innocence:
The Ordeal of 400 Americans Wrongly Convicted
of Crimes Punishable By Death (Northeastern
University Press: Boston, 1992) 6
Smith, "How to Defend Clients You Know Are Innocent,"
National Law Journal A22 (December 1, 1997) 35
U.S. Department of Justice, Convicted by Juries: Exonerated
by Science (National Institute of Justice: June 1996) 6
Weinreb, Denial of Justice: Criminal Justice in the
United States (Free Press: New York, 1977) 6
Zuckoff, "DA clears man convicted by police lies,"
Boston Globe B1-6 (January 24, 1998) 6
STATEMENT OF PROCEEDINGS AND FACTS
Louise Woodward adopts and incorporates by reference the statement of proceedings, including the
description of pertinent evidence at trial, at pp. 2-28, of her Brief of Defendant-Appellant, filed January
27, 1998.
INTRODUCTION AND SUMMARY OF ARGUMENT
The Trial Court ruled that, "After intensive, cool, calm reflection, I am morally certain that allowing
this defendant on this evidence to remain convicted of second-degree murder would be a miscarriage of
justice." [emphasis in original] A-542. This paradigmatic case demonstrates the wisdom of all three
branches of Massachusetts government, when they authorized Rule of Criminal Procedure 25(b)(2) in order
to prevent and remedy miscarriages of justice. Here, an experienced and conscientious trial judge understood
and credited the rational, hard-evidence-based scientific presentation of the pre-eminent members of the
respective fields of (1) biomechanics of head and brain injury, (2) neuroradiology, and (3) forensic
neuropathology, including the universally acknowledged leader of the University of Pennsylvania team that
authoritatively defined "shaken baby syndrome," which was corroborated objectively by the medical record,
autopsy report and photographs, CT scans and microphotographs. Largely on the basis of this compelling
expert and objective evidence, not present in any comparable child murder case in which guilty verdicts
have been returned and affirmed, the trial judge found that any scenario consistent with a verdict of murder
could not have happened. The trial judge's view of the evidence was consistent with, at most, fatal-battery
manslaughter, and he consequently reduced the jury's verdict and sentenced the defendant appropriately.
Were it not for this exercise of the highly-discretionary Rule 25(b)(2) power, this case would go down in the
annals of tragically erroneous trial outcomes that, while not exceedingly common, nonetheless mar the pages
of judicial history in this Commonwealth as elsewhere. This case demonstrates why this power, assigned to
the Trial Court, is salutary and should be preserved in its present form.
The Commonwealth's argument that this Court should alter settled law so as to further restrict the
exercise of this judicial power, which this Court and the Trial Court have used sparingly and exclusively to
prevent miscarriages of justice, should be rejected as both unwarranted in light of salutary experience with
the rule, and inconsistent with constitutional protections of liberty which place the risk of error in criminal
cases on the government.
Ms. Woodward presses her claims, argued in her appeal, that this Court should direct the entry of
an order dismissing the case or a required finding of not guilty. Without Woodward in any way impairing
or waiving her claims, upon review of the whole record, the Trial Court neither abused its discretion nor
committed an error of law by: (1) determining that justice would miscarry if the jury's verdict were allowed
to stand, (2) entering a guilty finding of involuntary manslaughter, and (3) imposing the time-served
sentence for that offense.
Contrary to the Commonwealth's arguments, Rule 25(b)(2) permits the Trial Court to reduce the
verdict to a guilty finding of any lesser offense included in the indictment, and is not limited to lesser
included offenses considered and rejected by the jury. Woodward's pre-verdict waiver of her right to an
involuntary manslaughter instruction did not include a waiver of her separate, post-verdict right to move the
Trial Court under Rule 25(b)(2) for a reduction of the jury's verdict.
ARGUMENT
I. THE TRIAL COURT'S RULING WAS A PROPER EXERCISE OF SALUTARY AUTHORITY,
GRANTED TO IT BY STATUTE AND THIS COURT TO CORRECT A
DISPROPORTIONATE AND UNJUST VERDICT, AND THE STANDARDS FOR THE
EXERCISE OF THAT POWER SHOULD REMAIN UNCHANGED.
The Commonwealth's Brief ("CB") fails to show that the Trial Court lacked legal authority to rule
as it did pursuant to Rule 25(b)(2), or that the Trial Court incorrectly stated or misapplied this Court's
opinions governing the exercise of that authority. The Commonwealth concedes that the Trial Court has
authority to "assess credibility, weigh evidence and even consider testimony that the jury might have
disbelieved," CB 25-26, including, of course, a defendant's testimony. While attempting to create the
impression that the Trial Court generally has violated this Court's intention that the Rule 25(b)(2) power be
used "sparingly" (CB 34), the Commonwealth nonetheless concedes that this Court has never "found that a
trial judge abused his discretion in responding to a defendant's motion for reduction in verdict," and that in
the two cases where this Court did reverse a Trial Court's reduction in verdict, such reversal was "due to
error of law." (CB 35) Yet despite the fact that Rule 25(b)(2) appears to have led an exemplary life and
lived up to its salutary purposes, the Commonwealth urges wholesale rejection of years of carefully
considered case law concerning the rule, because the power granted by the rule "is detrimental to the jury
system." CB 42. Even though the Commonwealth acknowledges (CB 34 n.9) that Rule 25(b)(2) was
mandated by the Governor and the Legislature in G.L. c.278, §11, it protests that current law authorizes the
judiciary to exercise legislative and executive powers in violation of Article 30, and impairs the public's
perception, if not the reality, of integrity in our justice system. CB 34-50.
This fallacy -- the Commonwealth's plea that this Court fix something that is not broken -- is
explained by the fact that the Commonwealth recognizes that, under this Court's development of guidance
for the exercise of Rule 25(b)(2), the Trial Court's reduction of the verdict and sentence in this case is fully
supported by existing law. In order to reverse Justice Zobel's reduction of verdict here, the standards
governing how this rule should be implemented would have to be radically altered. When the
Commonwealth says it seeks from this Court the articulation of "a strict and clear standard for trial judges
to follow" (CB 34), what it really wants is a radical restriction of the Trial Court's power to reduce verdicts.
There being no reason in theory or in practice for such a change, this Court should reaffirm the existing law and practice.
America's deepest legal foundations afford every accused a right to trial by jury in criminal cases.
However, Massachusetts law, including two statutes approved by the Legislature and Governor, G.L.
c.278, §§11 and 33E, embody an established recognition, based on repeated and painful experience, that
erroneous criminal convictions occasionally occur due to judicial and/or jury error. Neither the jury nor this
Court could at the time find any reason to doubt the justice of the first-degree murder and related robbery
convictions in Commonwealth v. Leaster, 362 Mass. 407 (1972). Yet, after fifteen years of unjust
imprisonment, it was determined that the murder weapon was used in a robbery after Bobby Joe Leaster
had been arrested, and that he was innocent. Lawyer Johnson was found guilty and sentenced to death by
the jury and trial judge, Commonwealth v. Johnson, 365 Mass. 534 (1974), but ultimately a new trial was
granted and the charges dismissed. Commonwealth v. Johnson, 13 Mass. App. 10 (1982). After this
Court rejected claims for a new trial in Commonwealth v. Salvati, 420 Mass. 499 (1995), the Governor
became convinced that Joseph Salvati was unjustly convicted and commuted his conviction and sentence.
Very recently, Christopher Harding was exonerated after a jury wrongly convicted him of the attempted
murder of a police officer and he had spent years unjustly imprisoned. See Zuckoff, "DA clears man
convicted by police lies," Boston Globe B1-6 (January 24, 1998).1
No judge may convict a person acquitted by a jury nor increase a jury's verdict to a greater offense,
because our system of liberty treats the jury's acquittal as inviolate. However, because of our recognition of
the risk of erroneous convictions by juries, judicial power to acquit, set aside or reduce the jury's guilty
verdict is integral to the protection of liberty. This judicial power coheres with other protections of liberty
which place the risk of error on the state: the protection against being tried twice for the same offense, the
privilege against self-incrimination, the presumption of innocence, and the burden to prove guilt beyond a
reasonable doubt.
The Commonwealth correctly notes (CB 38-39) that, after the trauma of Sacco and Vanzetti, the
1929 legislature and the Governor granted this Court power to review the evidence, in addition to the
correctness of the Trial Court's legal rulings, in order to remedy unjust criminal verdicts. But, as originally
enacted, G.L. c. 278, § 33E made a new trial the sole remedy for an unjust verdict. Re-trials carry an
inevitable risk to justice due to delay and attrition, and impose substantial burdens on the parties and
overburdened courts. In 1962, the legislature added a less drastic remedy, namely appellate power to direct
the entry of "a finding of guilty of any offense included in the offense charged in the indictment or
complaint." However, this Court always recognized that exercise of this appellate power requires it to
"weigh the evidence without the benefit of seeing the witnesses." Commonwealth v. Baker, 346 Mass. 107,
109 (1963)(Wilkins, C.J., reducing verdict from first degree murder to manslaughter). By 1979, this
Court's years of beneficial experience reviewing murder verdicts pursuant to G.L. c. 278, §33E, coupled with
its perception that the power to re-weigh evidence is best and most accurately exercised by the trial judge
who heard and saw the witnesses, persuaded it, as well as the Legislature and the Governor, to adopt the
provisions of G.L. c. 278, §11 and Rule of Criminal Procedure 25(b)(2) which grant the Trial Court similar
power in all criminal cases to "order the entry of a finding of guilty of any offense included in the offense
charged in the indictment or complaint." Contrary to the Commonwealth's suggestion that the judiciary's
exercise of Rule 25(b)(2) jurisdiction contravenes the separation of powers principle in Article 30, this
Court has stated that the "highly discretionary" jurisdiction to consider a defendant's motion to set aside or
reduce a jury's guilty verdict is "statutorily mandated." Commonwealth v. Carter, 423 Mass. 506, 513 (1996).
A. The Trial Court's Power to Reduce the Verdict to Any Lesser Included Offense Is
the Least Intrusive of Its Rule 25(b)(2) Powers to Vacate or Correct Erroneous or
Unjust Verdicts.
Rule 25(b)(2) includes an array of safety valves calibrated to remedy various forms and degrees of
injustice produced by erroneous and disproportionate jury verdicts. The rule gives the Trial Court the
power, even after a guilty verdict has been returned by the jury, to enter a finding of not guilty. Trial courts
are mandated to acquit a defendant, even after being convicted by a jury, if it is determined that, taken in a
light most favorable to the Commonwealth, the evidence is legally insufficient to support a guilty verdict.
Indeed, the constitutional due process guarantee prohibits courts from allowing a guilty verdict to stand or
be enforced, when it is based on legally insufficient, incriminating evidence. Commonwealth v. Paniaqua,
413 Mass. 796, 807 (1992); Jackson v. Virginia, 443 U.S. 307, 314-18 (1979). Hence, Rules 25(b)(2) and
30(b) recognize that juries convict erroneously, and convictions are erroneously affirmed on appeal, even
when the evidence is fatally deficient, and confers on judges the power and obligation to overrule and reverse
such erroneous verdicts. Commonwealth v. Cardenuto, 406 Mass. 450 (1990); Commonwealth v. Cormier,
41 Mass. 76 (1996).
The rule also gives the Trial Court the post-verdict power to vacate the jury's finding and order the
case to be tried anew. The Reporter's Notes state that this power "is in addition to those rights which the
defendant has under Rule 30(b)." The reiteration, in the Rules of Criminal Procedure, of the Trial Court's
power to order a new trial emphasizes the judicial responsibility to vacate a jury's guilty verdict whenever
justice may not have been done. The Trial Court may order a new trial by making credibility
determinations, contrary to the jury's guilty finding, that the verdict was against the weight of the evidence,
even though the evidence is legally sufficient to convict. Commonwealth v. Doucette, 408 Mass. 454, 455-
56 (1990); Commonwealth v. Preston, 393 Mass. 318 (1984). Though the re-trial remedy gives the
Commonwealth an opportunity to re-convict the defendant, it also presents the risk of an acquittal with no
assurance that a second trial may produce a more just or accurate result than the first.
Rule 25(b)(2) and this Court's decisional law under the rule and under G.L. c. 278, §33E, providing
for the power to reduce a guilty verdict to a finding of guilt of a lesser included offense, recognize that jury
verdicts may be disproportionate. The extent or degree of the resulting injustice may not be such that a new
trial is required. Existing law gives the Trial Court authority to re-weigh the evidence, just as it does on
motions for a new trial, but it allows the verdict to be reduced when the evidence does not preponderate so
heavily against the verdict as to warrant a new trial.
The immediate postverdict new trial motion allows the trial judge to mold the verdict in light of
experience with verdicts in other cases. The judge's opinion of witness credibility can affect that
latter decision, and a new trial or verdict reduction may be proper even when the evidence can
legally support the jury's verdict.
Commonwealth v. Carter, 423 Mass. at 512.
Hence, contrary to the Commonwealth's argument, the existing law affords the Trial Court more
refined and measured authority to see that justice is "more nearly achieved," Commonwealth v. Baker, 346
Mass. 107, 119 (1963), by displaying more – not less – respect and deference to the jury's verdict than
would the entry of an acquittal or the convening of a new trial. Moreover, as the Reporter's Notes explain,
this Court's decision to give trial judges the additional option to reduce the verdict, rather than to convene a
new trial, serves important interests of judicial economy. This Court explained that the power to reduce a
disproportionate jury verdict was conferred as a reform because "previously trial judges had only the option
of granting a new trial to cure the inequity." Commonwealth v. Gaulden, 383 Mass. at 556, citing
Commonwealth v. McCarthy, 375 Mass. 409, 412-13 (1978).
B. The Standards for the Exercise of the Verdict Reduction Power and for Appellate
Review Should Remain Unchanged.
The Commonwealth concedes that "this Court reviews a trial judge's reduction of verdict only for
errors of law or abuse of discretion. See Commonwealth v. Gaulden, 383 Mass. 543, 557 (1981)." CB 6. It
also concedes that the Trial Court properly may exercise its power to decide whether to reduce the verdict
by assessing credibility, weighing evidence, including crediting testimony that the jury may have disbelieved.
CB at 25-26. The judge's fact findings, based on credibility assessments "will not be disturbed unless there
is no support in the record." Commonwealth v. Millyan, 399 Mass. 171, 189 (1987).
Since it is aware that it cannot show that the Trial Court abused its discretion or committed an error
of law under this Court's existing standards, the Commonwealth urges this Court to adopt, for the first time,
more stringent standards for the exercise of the Trial Court's verdict reduction power as well as an altered
standard of review. First, it argues that a reduction should be permitted only where the evidence was
legally insufficient to support the jury's verdict. CB 35-36. The Commonwealth fails to acknowledge that
this Court has expressly rejected this proposal on two prior occasions, Commonwealth v. Millyan, 399
Mass. 171, 189 (1987); Commonwealth v. Gaulden, 383 Mass. 555-57, and provides no reason why those
opinions are no longer persuasive and should be overruled. Second, it argues that the judge must find that
"the verdict is so against the weight of the evidence as to suggest that the jury was influenced by non-
evidentiary considerations" or that "no reasonable person could have confidence in the jury's result." CB
36. Though it conjures up fear of judicial usurpation of the jury's function, the Commonwealth makes no
showing that the existing Rule 25(b)(2) standards, including the standard of appellate review, has permitted
careless or groundless denigration of jury verdicts to occur or go uncorrected, nor has it shown that the
existing standard of review has permitted a lack of even-handedness.
Were the Commonwealth's proposal adopted, new trial orders would be reviewed under a more
deferential standard than would the less drastic relief of reducing the verdict. This would conflict with this
Court's policy of avoiding unnecessary new trials by allowing trial judges to afford less drastic relief
calibrated to upset disproportionate verdicts only to the degree necessary to more nearly achieve justice.
As we have noted, exercise of the power to reduce a verdict to a lesser included offense is more deferential
to the jury than a new trial order. For that reason, a verdict reduction should not be subjected to more
stringent appellate scrutiny than a new trial order.
As a matter of the sound administration of justice, the setting of standards of review depends upon
a determination of whether the appellate or trial court is best positioned to make the type of decision at
issue. Like the power to order a new trial where justice may not have been done, the verdict reduction
power requires weighing all the evidence heard and seen during the adversarial interplay of the trial. This
Court has acknowledged that appellate judges have had to proceed under G.L. c. 278, §33E with the
disadvantage of not seeing and hearing the witnesses, while trial judges do not have that disadvantage.
Commonwealth v. Gaulden, 383 Mass. at 554; Commonwealth v. Cobb, 399 Mass. 191, 192 (1987). Trial
judges "may be aware of nuances of conduct, tone and evidence that easily escape the cold record available
to an appellate court on review." Commonwealth v. Preston, 393 Mass. at 324.2 Moreover, this Court has
acknowledged that in appellate decision-making of this type, "the cases turn on their particular facts to such
a degree that, at best, only a general sense of uniformity can be achieved." Commonwealth v. Gaulden, 383
Mass. at 554.
Because the verdict reduction power must be exercised very sparingly and only in rare, atypical
cases, Trial Court judges are better positioned, through their daily exposure to a far larger number of cases
than come before appellate courts, to recognize factors which are present to such an unusual degree that
Rule 25(b)(2) intervention is warranted. This Court recognized this in Commonwealth v. Cobb, 399 Mass.
191, 192 (1987):
We defer to the trial judge because he has the advantage of face to face evaluation of the witnesses
and the evidence at trial. He is in a far better position than we are to make the judgment required by
the rule.
Trial judges see enormous numbers of cases which appellate judges never see, such as cases that
result in dismissals, acquittals, hung juries, guilty pleas, and unappealed convictions. The ten cases in which
the Commonwealth has appealed verdict reductions, out of the many thousands of cases resolved in the
Trial Court, makes it evident that such decisions are rendered neither frequently nor inappropriately.3 In
the daily flow of cases, trial judges come to recognize the patterns of evidence and range of verdicts that
recur in the "heartland" or "mine-run" of cases of various kinds, including child abuse and child homicide
cases. When a jury verdict deviates from the typical or usual in ways and to a degree that make it
extraordinarily disproportionate in light of the credible evidence, an experienced trial judge recognizes it.
Hence, Rule 25(b)(2) properly permits the Trial Court to rectify the inequity and injustice, subject to this
Court's review for abuse of discretion or error of law. Commonwealth v. Carter, 423 Mass. at 512.
This Court should reject the Commonwealth's suggestion that the verdict reduction power be
curtailed. The verdict reduction safety valve, designed to prevent and rectify injustice, has well served its
proper, ameliorative purpose in this and other cases. Such a curtailment would be unwarranted and ill
-considered in view of (1) the Trial Court's history of sparing and judicious use of this authority and, (2) the
ultimate and fundamental judicial responsibility, properly reposed in the first instance and primarily in the
Trial Court, to remedy the relatively infrequent but still disquieting number of erroneous and
disproportionate jury verdicts, in the interests of justice.
II. THE TRIAL COURT NEITHER ABUSED ITS DISCRETION NOR COMMITTED AN
ERROR OF LAW BY CONCLUDING THAT THE JURY'S VERDICT WAS A MISCARRIAGE
OF JUSTICE, REDUCING THE VERDICT TO INVOLUNTARY MANSLAUGHTER, AND
IMPOSING THE TIME-SERVED SENTENCE.
A. The Record As a Whole Supports The Trial Court's Conclusion That Allowing the
Jury's Verdict to Stand Would Be a Miscarriage of Justice.
The Commonwealth complains (CB 24-26 "...he identified no event at trial which would have
warranted a reduction in verdict") that the Trial Court did not explain to the prosecution's satisfaction what
occurred during the trial and what credibility assessments the Court made which caused it to find the jury's
verdict was, in light of the evidence presented, "that rare collection of circumstances, the grave failure of
justice." A-542.4 This Court need not, and sometimes does not, provide an explanation based on trial events
for its determination, pursuant to G. L. c. 278, §33E, that a jury's verdict should not be allowed to stand.
Commonwealth v. Tavares, 385 Mass. 140, 158-59 (1982); Commonwealth v. Maskell, 403 Mass. 111,
117-18 (1988). Neither was the Trial Court obliged to do so. The Court assured the jurors that no
criticism of them should be inferred from its decision. A-542-543. The Trial Court stated accurately: "If
leaving the verdict untouched would preserve a miscarriage of justice, Rule 25(b)(2) makes the judge's duty
clear. He must determine the existence of the miscarriage, not its cause." A-542.
The Commonwealth does not claim that the Trial Court erred because the facts found in its ruling
lack record support. Nevertheless, appellate review involves examination of the entire record because, in
addition to the reasons stated by the Trial Court, this Court may affirm the Trial Court's Rule 25(b)(2)
decision where the record as a whole supports it. Commonwealth v. Preston, 393 Mass. at 323 n.4. Some
of the features of the record which support the Trial Court's conclusion that justice would miscarry if the
second degree murder verdict were allowed to stand can be briefly summarized.
1. Strength of Exculpatory, Scientific Evidence.
The Trial Court noted that "the jury spurned, as not worthy of belief, professional opinions
emanating from a corps of highly-qualified, authoritative experts." It is apparent that the Trial Court
credited the defense's scientific evidence and expert witnesses and found that the prosecution's experts were
impeached sufficiently to undermine its confidence in the justice of the verdict. The Trial Court was not
alone in viewing the defense experts as pre-eminent in their fields. Dr. Leestma was acknowledged by the
prosecution's expert to be the foremost forensic neuropathologist alive and the author of the authoritative
forensic neuropathology textbook (5:45); Dr. Gean, the defense's neuroradiologist, was acknowledged by
the prosecution's expert to have recently written the leading textbook in the area of "imaging brain trauma"
(4:73-75) and that he relies on it all the time to interpret trauma cases. Dr. Thibault, of course, wrote the
leading article on shaken impact baby syndrome upon which the prosecution's experts explicitly relied in
their analysis of this case. 2:237; 3:203; 4:43, 94, 162; 6:23; 6-119-120. Dr. Ayub Ommaya was
acknowledged as a "pioneering" neurosurgeon whose work on "whiplash" brain injury, and his theory, with
Dr. Gennarelli, of "centripetal brain injury" formed the theoretical underpinnings for "shaken impact" baby
cases. 12:34-38. The defense experts' opinions were corroborated by hard, objective, graphic evidence in
the CT scans, the autopsy report, and photomicrographs of brain tissue specimens.
a. No Violent Slam Causing Skull Fracture and Subdural Hematoma
on February 4.
The Trial Court found that intracranial bleeding started or re-started on February 4, 1997, but, most
significantly, it did not find that the traumatic event which resulted in the skull fracture and the subdural
hematoma occurred on that day. If force equivalent to an impact at 21 miles per hour from a 15-foot fall
onto a fixed, flat hard surface was imparted through the scalp so as to cause the skull fracture, the Trial
Court could readily conclude that it would be a grave miscarriage of justice to find, as the jury apparently
did, that this occurred during the period of Woodward's sole custody on February 4.
This conclusion was reached by the Trial Court on the basis of hard scientific evidence in the case.
Dr. Thibault, an expert whose authoritative research on the force required for fractures, tissue damage, and
brain injuries to infants has been funded by the Center For Disease Control for the last ten years, testified
that it was literally impossible for an infant's skull to be slammed against a fixed hard surface at the
equivalent of 21 mph without there being evidence externally and internally of swelling as well as breaking
of the scalp, and comminuted fractures of the skull rather than just a linear fracture present here. 11:218-
220. Similarly, the "bone window" CT scan taken at admission provides definitive evidence there was no
violent slamming on February 4th, according to Dr. Gean, Dr. Thibault, and all other defense experts,
because there was no evidence of swelling at the site of the fracture. 9:163; 10:228-231; 11:221-222; 12:46;
12:239-240; 12:263; 13:19. Given the exquisite sensitivity of the CT scan to pick up swelling associated
with soft tissue injury, the "bone window" image of the scalp at the site of the fracture showing no such
swelling (9:105-110; 11:169-170; 12:107; 12:276; 13:23-24) or slight swelling (4:94) simply precludes the
finding of the acute occurrence of an impact to the head, causing a skull fracture. Such a recent event would
have automatically caused a breakage of blood vessels even if it were caused by a low impact event, much
less the violent slamming alleged by the prosecution.
From this authoritative and objectively corroborated evidence, the Trial Court properly found that
the event that resulted in the skull fracture and subdural hematoma involved far less force than the
prosecution claimed, because no one noticed anything untoward, including even slight swelling, when this
occurred weeks earlier, after which the soft tissue injury and the swelling resolved with the passage of time.
See Brief of Defendant-Appellant (DB) 21 n.12. Moreover, Dr. Madsen's observation of serum spurting
out from the subdural hematoma confirmed that a portion of the hematoma had begun to resolve and hence
was not acute.
In addition to the CT scan and serum evidence, Dr. Leestma's uncontested finding of growing bone
and osteoblasts in the epidural side of the dura at the site of the skull fracture provides more than an
evidentiary basis for the Trial Court's conclusion that the verdict would miscarry if allowed to stand; it in
fact provides legally conclusive proof of a "weeks old" injury, entitling Woodward to a required finding of
not guilty. DB 25-26, 67-70.
b. No Violent Shaking.
Dr. Gerald Feigin, the Chief Medical Examiner's forensic pathologist, opined against violent shaking,
relying upon his office's neuropathology report and the absence of neck injuries or confirmatory bruising
anywhere on the body. 4:197-198. As reflected in the Medical Examiner's neuropathology report, Dr. De
Girolami found no evidence of shearing injury to brain tissue which would have confirmed the occurrence of
violent shaking. A-56-58. All defense experts, including Dr. Lawrence Thibault, the author of the seminal
study on "shaken-impact syndrome" which was relied upon heavily by prosecution experts, confirmed that
the absence of cervical spine, spinal cord, and neck injuries could not be reconciled with the violent shaking
claimed by the prosecution.5
2. The Trial Court's Failure to Emphasize to the Jury That Its
Consideration of Woodward's Guilt Be Confined to Violent Trauma Inflicted on February
4, 1997.
The Trial Court refused the defense's initial request, and later request for a curative instruction
which would have emphasized that a guilty verdict could be returned only if the criminal act at issue
occurred on February 4 and "on no other day," and the jury could have concluded that the temporal
limitation was removed by the Trial Court's spontaneous, mid-deliberation instruction. DB 59-60. The
prosecution's final summation argued that Woodward was "responsible" for the death, without once
mentioning murder. The jury might have been unable to reject the defense's evidence that the fracture and
subdural hematoma were "weeks old" and that slight, jarring or normal handling on February 4 caused fatal
bleeding or rebleeding, but nevertheless might have found Woodward guilty even though there was no
evidence whatsoever that she was "responsible" for whatever earlier event caused the skull fracture and
subdural hematoma.
3. The Commonwealth Destroyed Crucial Physical Evidence.
The skull fracture itself was not subjected to post-mortem radiography, unlike every other bone in
the body. Such studies result in clearer images and might have confirmed healing processes. The Trial Court
never altered its pre-trial findings that Dr. De Girolami discarded dura from both the left and the right sides,
Tr. 9/26/96 at 3-4, and would have been warranted in disbelieving Dr. De Girolami's trial testimony when,
after learning that his pre-trial testimony established a violation of a court order, he withdrew his admission
that dura had been discarded when he cut specimens from it. The Trial Court was free to draw an inference
adverse to the prosecution from its failure to preserve critical evidence and from the inexcusably delayed
disclosure of autopsy photographs showing healing signs of "lipping" on the surfaces of the skull fracture.
4. Likely Impact on Jury of Parents' Display of Grief While Testifying and
Prosecutor's Appeal to Emotion While Failing to Mention Murder in Final
Summation.
The prosecution's final summation was replete with emotional references to the finality, loss and
pain of Matthew Eappen's death. The jury saw both parents grieve on the witness stand. Without
addressing the substance or details of the scientific and medical dispute, the prosecutor argued that local
expert witnesses from Children's Hospital should be credited as supposedly more experienced with child
abuse, while all of the defense's scientific evidence was a fraud perpetrated by defense counsel through
falsified expert observations and opinions, including those of Dr. Leestma.6 The prosecutor told the jury
that Woodward was "responsible" for the death, yet made no reference to murder.
The Trial Court found the jury's wholesale dismissal of the exculpatory, scientific evidence to be a
miscarriage of justice. In order to conclude that the verdict miscarried justice, the Trial Court need not state
or find explicitly that emotional factors interfered with the jury's judgment of the hard, scientific facts.
However, review of the entire record certainly supports that conclusion.
5. The Trial Court's Decision to Accept the Defendant's Election Against a
Manslaughter Instruction.
In ruling on the motions for a required finding (8:307-308), and for a new trial, the Trial Court
stated that evidence "sufficed, however thinly," to support the first degree murder charge. A-536. In final
summation, the Commonwealth relied, as the principal basis for this charge, upon repeated episodes of
violent shaking. 15:94, 98. However, the examination by the Medical Examiner's office conducted by Drs.
Feigin and De Girolami contradicted evidence given by other prosecution witnesses that violent shaking had
occurred. The prosecution's ophthalmologist conceded that her opinion that shaking had occurred was
based on her assumption that certain types of retinal hemorrhages symptomatic of violent shaking were
present prior to surgery even though the pre-operative, funduscopic examination proved otherwise. 6:69.
Through its tactic of clinging to its barely-supported first degree murder charge, the prosecution hoped to
increase the likelihood that the jury would convict of some lesser offense, including manslaughter.
Prosecutors often adopt such tactics, particularly when a conviction is far from certain, based on common
experience that the more guilty-verdict options a jury is given, the greater the likelihood that a conviction for
some offense will result.
The defense also recognized that, by giving the jury a third guilty-verdict option of manslaughter,
the risk of a guilty verdict increased. At pains to avoid the conviction of an innocent person of any offense,
the defense refused to acquiesce in the prosecution's effort to increase the chances of Woodward's
conviction by agreeing to a manslaughter instruction.7 When the Trial Court sustained the defense's
objection to the Commonwealth's request for a manslaughter instruction, as the law permits, the
Commonwealth unsuccessfully sought G.L. c. 211, § 3 relief from a Single Justice of this Court. See
Docket #97-0592, 10/27/98.
The record supports the conclusion that the prosecution's over-charging tactic and defense response
resulted in the absence of a manslaughter instruction, and that, in turn, may have contributed to the
disproportionate and unjust murder verdict. See Commonwealth v. Millyan, 399 Mass. at 188-90 (Trial
Court's reduction due to its failure to instruct on mitigating intoxication affirmed). The Trial Court's opinion
posits reasoning by which a jury might have convicted of manslaughter had the option been presented,
suggesting that it believes that the unjust murder verdict may have been attributable, in part, to the absence
of the manslaughter jury instruction.
6. The Verdict, Which Was Based Exclusively on a Third Prong Malice
Instruction, Should Not Be a Sufficient Basis for a Murder Conviction in
Massachusetts, and Would Constitute Manslaughter in Most American
Jurisdictions and in England.
In the annals of all other reported Massachusetts murder cases, there has never been another the
jury verdict based solely on third prong malice, even though third prong malice has been part of
Massachusetts murder law at least since Commonwealth v. Pierce, 138 Mass. 165, 178 (1884). The
disproportionality of this murder verdict is established by its uniqueness. Thus, the Trial Court's reduction
of the verdict prevents Woodward from being singled out for a murder conviction and life sentence under a
definition which has never formed the exclusive basis for such a conviction in the entire reported history of
Massachusetts homicide law.
The jury instructions permitted Woodward to be convicted of murder without proof of what her
actual, subjective state of mind was with respect to the risk posed by her conduct. The murder instruction
did not even require proof that she realized that her conduct posed a risk of death. In her appeal (DB 45-
56), Woodward maintains that the elements included in the jury instructions do not properly or fairly
constitute murder. The weight of authority in American jurisdictions and in England would not grade as
murder the homicide offense defined by the jury instructions, but rather as manslaughter. Seen in this light,
the Trial Court's recognition of the murder verdict as disproportionate and unjust coincides with the
consensus of Anglo-American homicide law.
The murder verdict was correctly reduced because third prong malice is a disproportionately
inadequate basis upon which to find liability for murder, particularly when it is compared to the
blameworthiness which the Commonwealth must prove to establish either of the other two prongs of
malice. This case presents an appropriate occasion for this Court to bring Massachusetts criminal law into
conformity with sound and widely-accepted distinctions and policies which inform the grading of homicide
offenses, including internal consistency and coherence, proportionality, and clarity, by eliminating third
prong malice from the definition of murder.
7. The Murder Verdict Was Inconsistent With the Nature and Strength of the
Evidence in Other Child Homicide Cases.
The Commonwealth's argument (CB 27-29) that the verdict was not "markedly inconsistent" with
other, affirmed child murder convictions is erroneous for at least three reasons. First, as we have noted,
unlike this pure third prong malice case, each of the cases cited by the Commonwealth involved allegations
and proof that the defendant intentionally killed the child, as well as jury instructions which permitted the
murder conviction to be based on an intentional killing.
Second, in none of the cases cited by the Commonwealth was there any hard, scientific evidence
supporting the defendant's innocence. The Trial Court expressed its moral certainty that justice would
miscarry if the murder verdict were allowed "on this evidence" (A-542), because after considering the entire
record and relying upon its substantial experience with many other child abuse and homicide cases, it could
not find that the Commonwealth had proven that Woodward inflicted a trauma which fractured Matthew
Eappen's skull and caused the subdural hematoma that, as all experts agreed, began to form simultaneously
with the fracture.
Third, the evidence in the affirmed child murder cases cited by the Commonwealth contrasts
sharply with this record. For example, in Commonwealth v. Merola, 405 Mass. 529 (1989), the defendant
gave contradictory accounts of events during the period when the fatal blow occurred. Unlike Matthew
Eappen's body which had no swelling, bruise or abrasion at any relevant time, Merola's victim, who died
from a left-side subdural hematoma, had bruises on his left forehead, left chin and on the scalp over the left
eyebrow, and many other bruises and injuries over most of his body. Id. at 531-32. In Commonwealth v.
Azar, 32 Mass. App. Ct. 290 (1992), in which Associate Justice Zobel presided at trial, the jury found the
defendant guilty of second degree murder. The Court found that the defendant's admissions that he killed
his daughter and his initial claim that he caused the death accidentally supported the verdict. Additionally:
An autopsy revealed bruises and abrasions on various parts of her body, some of which were
inflicted minutes to hours before her death. There were fractures in her arms and legs, consistent
with her body having been shaken as she was held by the chest. Some of these fractures occurred
from minutes to days before her death. She also had fractures of five ribs, one to six weeks old, in
the process of healing. The infant's skull was fractured, and her brain was swollen and flattened.
This injury resulted from a great force applied to the side of her head, as it hit a broad, flat surface.
Id. at 291-292. Also, "[a]ll the bruises were connected to the defendant either by his own statements or
through the observations of others." Id. at 299. The rib fractures were also linked to the defendant. Id.
The Commonwealth's argument that this and the Azar records are comparable is simply false. To the
contrary, the enormous differences in the two records confirm that the trial judge properly recognized the
disproportionality of the murder verdict in this case.
The records in the other cases cited by the Commonwealth are distinguished from this case by
evidence in each case, not present here, showing that the child's body had been struck violently enough to
cause bruising and other blatant signs of intentional, and often repeated, violent abuse, and the evidence tied
these signs of intentional abuse to the defendant. Moreover, as we have noted, the universe of cases
appropriately used to determine disproportionality is not limited to the reported cases decided after
appeals, but also includes the much larger universe of cases seen in the Trial Court in which no appeal
occurred.
B. The Trial Court Neither Abused Its Discretion Nor Committed An Error of Law By
Entering Its Manslaughter Finding.
1. Rule 25(b)(2) Permits the Jury Verdict to Be Reduced to a Guilty Finding of
Any Lesser Offense Included in the Indictment, and Is Not Restricted to
Lesser Included Offenses Considered and Rejected by the Jury.
During the trial, the Single Justice (Ireland, J.) saw no reason to intervene concerning the Trial
Court's decision to hold the prosecution to its burden to prove the indicted charge (including its weakly
supported charge of first degree murder). Commonwealth v. Roberts, 407 Mass. 731, 737 (1990);
Commonwealth v. Pagan, 35 Mass. App. Ct. 788, 792 (1997). It does not matter whether this case went
off track because the jury was erroneously, or properly, deprived of the manslaughter option. What matters
from the vantage point of Rule 25(b)(2) is, as the Trial Court wrote, "the existence of the miscarriage, not its
cause.." A-542. To make this case turn on whether the defense and the trial judge were right or wrong with
respect to the omitted manslaughter instruction, would create precisely the "casino" that the Trial Court
stated is incompatible with assuring that justice is done. A-542.
Obviously, the jury's verdict means that the Commonwealth suffered no trial prejudice from the
absence of the manslaughter instruction. The Commonwealth's argues that the Trial Court forfeited its
power under Rule 25(b)(2) to reduce the verdict to manslaughter by refusing to instruct the jury on that
offense. CB 14. It claims that, because "the judge deprived the jury of the opportunity to consider
involuntary manslaughter, that offense was not truly 'included' within the indictment in this case" CB 14-15.
These arguments should be rejected for at least four reasons.
First, the text of Rule 25(b)(2) states the jury verdict may be reduced by ordering "the entry of a
finding of guilty of any offense included in the offense charged in the indictment or complaint." The lesser
included offenses to which the verdict may be reduced are not restricted by the rule's text to lesser offenses
considered and rejected by the jury. The Commonwealth does not deny that involuntary manslaughter
qualifies as a lesser included offense under this murder indictment, and hence that the Trial Court's ruling
comports with the literal meaning of the text of Rule 25(b)(2). Its very weak argument is that involuntary
manslaughter is not "truly included" unless the jury considered and rejected an involuntary manslaughter
verdict. Either involuntary manslaughter qualifies as a lesser included offense under this indictment, or it
does not. Whether the jury considered and rejected a verdict of guilty of involuntary manslaughter has
nothing to do with whether that crime qualifies as a lesser included offense under the rule.
Second, neither the Trial Court's decision to omit manslaughter from the jury instructions nor the
defendant's objection to the involuntary manslaughter instruction was based on a finding or contention that
involuntary manslaughter does not qualify as a lesser included offense, or that the evidence does not
support a conviction of that lesser included offense. The Trial Court simply exercised its discretion, which
the Single Justice declined to disturb, by refusing to give an involuntary manslaughter instruction over the
objection of the defendant. Hence, nothing in the Trial Court's discretionary decision disqualified
involuntary manslaughter from being deemed a lesser included offense for purposes of Rule 25(b)(2).
Third, the Commonwealth's proposed interpretation conflicts with its argument that the jury's
considered judgment should be given even more deference and invulnerability to Rule 25(b)(2) intervention
than is already true under existing law. If the Commonwealth's interpretation were accepted, the Trial Court
would be restricted to reducing the jury's verdict to a guilty finding for a lesser offense only when the jury
considered and rejected the lesser degree of guilt. Because the Trial Court reduced the guilty finding to a
lesser included offense which was not considered by the jury, its ruling does not conflict with any judgment
that the jury made about a manslaughter verdict. For that reason, the Trial Court overruled the jury's
considered decision-making here to a far lesser degree than in the reported cases in which this Court or the
Trial Court reduced the finding of guilt to a lesser included offense notwithstanding the jury's prior
opportunity and pointed refusal to do so.
Fourth, even if, as the Commonwealth contends, the Trial Court should have granted its request for
an involuntary manslaughter instruction over the defendant's objection, that ruling provides a reason for,
rather than an obstacle to, a reduction of the second degree murder verdict to manslaughter. Commonwealth
v. Maskell, 403 Mass. 111, 117 (1988)(conclusion that reduction was warranted reached "independent of
the agreement of the parties"). The identity of the party requesting an erroneously omitted instruction has
no bearing on the existence of the miscarriage resulting from the excessive verdict, nor on the courts' power
to remedy it through a reduction.
2. Woodward's Waiver of Her Right to an Involuntary Manslaughter
Instruction Did Not Include a Waiver of Her Separate Right to Move For a
Reduction To a Lesser Included Offense Pursuant to Rule 25(b)(2) In the
Event of a Guilty Verdict.
The Commonwealth correctly notes that the Trial Court found that Woodward waived her right to
an involuntary manslaughter jury instruction. CB 16. However, that waiver cannot lawfully be stretched to
constitute a forfeiture of her separate right, afforded to her by "statutorily mandated" Rule
25(b)(2)(Commonwealth v. Carter, 423 Mass. at 513), to move the Trial Court to reduce the murder verdict
to any lesser offense included in the indictment. There is nothing in the Trial Court's colloquy with the
defendant concerning her waiver of her right to an involuntary manslaughter instruction (14:227-230) which
put her on notice that, in so doing, she was also relinquishing her Rule 25(b)(2) right to seek a reduction of
the verdict to involuntary manslaughter in the event of her conviction for murder. See Commonwealth v.
Beasley, 13 Mass. App. Ct. 62, 65 (1982). The Commonwealth bears a heavy burden to establish waivers
of constitutional and procedural rights which protect liberty interests of criminal defendants. Waivers may
not be established by implication and are narrowly, rather than broadly, construed. See Commonwealth v.
Dustin, 373 Mass. 612, 615 (1977); Attorney General v. Industrial National Bank of Rhode Island, 380
Mass. 533, 536 n.4 (1980). Under these settled principles, the Commonwealth has failed to show that
Woodward's waiver was so all-encompassing.
The Trial Court's opinion correctly declined to treat Woodward's pre-verdict, tactical choice to
reject an involuntary manslaughter instruction as if the Trial Court were a casino and she irretrievably lost a
life-stakes gamble which somehow precluded her from invoking her Rule 25(b)(2) right to seek a post-
verdict reduction in the degree of injustice, which she insists was inflicted on her by the jury's verdict.8 To
rule otherwise is to put actually innocent defendants, who will and often must choose tactics which differ
sharply from the guilty, at even greater risk of inaccurate verdicts and unjust punishment.9 In this part of
its opinion, as much as in the verdict reduction order itself, the experienced Trial Court judge correctly
perceives the vulnerability of the trial process to erroneous convictions from a range of causes -- from the
interplay of the parties' tactical choices to simple misfortune in jury selection -- and correctly focuses on
identifying and ameliorating the rare miscarriage of justice, whatever the cause.
3. The Trial Court's Findings Are Sufficient to Support the Manslaughter
Conviction, and Even If the Facts Found by the Trial Court Are Only
Deemed Adequate to Support the Lesser Included Offense of Assault and
Battery, the Error Prejudices the Defendant, Not the Commonwealth.
Having argued strenuously for an involuntary manslaughter instruction so that the jury would have
the option to find Woodward guilty of that offense, the Commonwealth should not be heard to complain
when the Trial Court enters that finding as being more consonant with the evidence than the jury's verdict of
second degree murder. The Commonwealth does not deny that involuntary manslaughter can be found
lawfully on this evidence, but claims that the Trial Court's findings do not satisfy the elements of
involuntary manslaughter. CB 17-20. The Commonwealth acknowledges that a holding of Commonwealth
v. Campbell, 352 Mass. 387, 397 (1967) -- that an involuntary manslaughter conviction can be based on a
fatal battery -- remains current law. Hence, the Trial Court correctly cited Campbell for this proposition of
Massachusetts manslaughter law. A-541. The Commonwealth also acknowledges (CB 19) that subsequent
to Commonwealth v. Catalina, 407 Mass. 779 (1990), this Court held in Commonwealth v. Sneed, 413
Mass. 387, 394 & n.5 (1992) that fatal battery-involuntary manslaughter does not require an act which the
defendant knew or should have known endangered human life, and clarified its prior ruling by stating that
the level of risk of physical harm is "a high degree of likelihood that substantial harm will result to another."
The Trial Court's opinion states that the evidence supports a finding that Woodward was "a little rough"
while trying to quiet Matthew Eappen's crying, where a wiser person "would have sought to restrain the
physical impulse, and that the factfinder would be warranted in finding this handling to be "excessive" and
"unjustified." The Trial Court's statement that a person's pre-existing physical fragility from a prior
condition which renders him, unbeknownst to the defendant, unable to tolerate what would otherwise be a
non-lethal battery is an accurate statement of the law. Commonwealth v. Jenner, 24 Mass. App. Ct. 763
(1987); Commonwealth v. Giacomazza, 311 Mass. 456, 463 (1942). The Commonwealth does not say
why the Trial Court's finding of rough handling of an infant (even an infant who had suffered a skull fracture
and subdural hematoma weeks earlier) by a somewhat angry adult who lacks knowledge of the pre-existing
condition and any state of mind amounting to malice, is insufficient to satisfy the elements of fatal-battery
manslaughter delineated in Campbell and Sneed.
Woodward maintains here, as she did at trial, that she is innocent of any offense; the
Commonwealth argues that the jury's verdict was correct. Trial Court's finding was that the defendant's
acknowledgment that she told the police that she had been "a little rough" (A-540) but meant only that she
was "not as gentle as I might have been" (13:229-230) was a sufficient basis to find she employed far less
force than the Commonwealth claims, but enough to establish fatal battery manslaughter. If, as the
Commonwealth argues, the Trial Court's findings are insufficient to establish the lesser included offense of
involuntary manslaughter, Woodward, not the Commonwealth, was prejudiced by the error, as the Trial
Court's finding establishes the lesser included offense of assault and battery, G.L. c.265, §13A or J, for
which the time-served sentence is equally appropriate and lawful.
Woodward maintains that this Court should order the entry of an acquittal, because the defense's
evidence caused a fatal deterioration in the Commonwealth's case, and the elements in the jury instruction do
not suffice to establish murder. DB 45-56; 67-70. In the event that this Court rejects her claim that a
required finding or dismissal should have been entered, this Court may affirm the Trial Court's verdict
reduction and sentence, or affirm the sentence but order the Trial Court to enter a finding of guilt of assault
and battery based on this Court's review of the record.
C. The Sentence Was Lawful, and There Is No Reason for This Court to Exercise Its
Powers of Superintendence or Extraordinary Powers Under G.L. c. 211, § 3.
The Commonwealth concedes that the time-served sentence was a lawful sentence for involuntary
manslaughter. Its brief correctly notes that the Trial Court may enter a finding of guilt of a lesser included
offense for the purpose of avoiding a sentence mandated by the political branches, Commonwealth v.
Sabetti, 411 Mass. 770, 780-81 (1992); Commonwealth v. Burr, 33 Mass. 637, 643 (1992), but it
stops short of ignoring the fact that the Trial Court's ruling is based on a lack of malice rather than on a purpose to
avoid the mandatory life sentence for murder. Indeed, prior to reducing the verdict, the Trial Court imposed
the life sentence. The Trial Court's mere mention of the sentence prescribed by law for murder does not
provide a basis for this Court to find an abuse of discretion or error of law, see Commonwealth v.
McCarthy, 375 Mass. 409, 415 (1978).
CONCLUSION
All of the Commonwealth's claims for relief from the Trial Court's order and sentence can be fully
reviewed and rejected under existing substantive law though the vehicle of its appeal pursuant to Rule 25(c).
Hence, there is no procedural or substantive reason for this Court to invoke its general power of
superintendence nor its extraordinary powers under G.L. c. 211, § 3, and this Court should decline to do so.
Louise Woodward presses her claims that this Court should direct the entry of a required finding of
"not guilty" or, in the alternative, that the charge should be dismissed. DB 35-44; 67-70. In the event that
this Court rejects these claims, this Court should affirm the Trial Court's verdict reduction and sentence, or
else affirm the sentence but order the Trial Court to enter a finding of guilt of assault and battery.
Respectfully submitted,
Andrew Good Barry C. Scheck
BBO #201240 Benjamin N. Cardozo School of Law
Harvey A. Silverglate 55 Fifth Avenue, Room 1701
BBO #462640 New York, NY 10003
Philip Cormier Tel. (212) 790-0368
BBO #554515
SILVERGLATE & GOOD
83 Atlantic Avenue
Boston, MA 02110-3711
Tel: (617) 523-5933
Sharon L. Beckman Elaine Whitfield Sharp
BBO #552077 BBO #565522
Assistant Professor of Law WHITFIELD SHARP & SHARP
Boston College Law School 196 Atlantic Avenue
885 Centre Street Marblehead, MA 01945
Newton, MA 02159 Tel. (617) 639-1862
Tel. (617) 552-0639
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: February 24, 1998