COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH
No. SJC-07635
COMMONWEALTH
V.
LOUISE WOODWARD
______________________________________________________
LOUISE WOODWARD'S POST-ARGUMENT BRIEF
______________________________________________________
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 Elaine Whitfield Sharp
Tel: (617) 523-5933 BBO #565522
WHITFIELD SHARP & SHARP
196 Atlantic Avenue
Marblehead, MA 01945
Tel. (617) 639-1862
Date: March 10, 1998
Defendant, Louise Woodward, submits this supplemental brief, if given leave to do so, in order to
clarify certain points raised during oral argument.
I. The Commonwealth stated at oral argument that Matthew Eappen "lived on a respirator
for one week." The record shows that Matthew Eappen died on February 9, 1997, five days after his
admission to the hospital on February 4th. At trial, the defense presented unrebutted pathology evidence (a
photomicrograph of a slide, Exhibit 94-1) displaying the presence of "osteoblasts" and "growing bone" in a
tissue specimen taken from the epidural surface of the dura at the skull fracture site. Dr. Jan Leestma, the
neuropathologist who made the slide, Dr. Michael Baden, a pathologist who routinely makes and reviews
such slides, Dr. Alisa Gean, a neuroradiologist, Dr. Ayub Ommaya, a neurologist and neurosurgeon, and Dr.
Ronald Uscinski, a pediatric neurosurgeon, all testified that the "osteoblast" and "growing bone"
observation on Exhibit 94-1 proved that the skull fracture was "weeks old." 9:106-110; 10-186-187; 13:24;
11:169-170; 12:74-75; 12:270-271. The defense specifically made this point in closing argument, holding up
Exhibit 94-1 to the jury. 15:17.
The Commonwealth had the opportunity to rebut this preclusive scientific fact by disputing either
the existence of the osteoblast cells and growing bone at the site of the skull fracture or the scientific
certitude that the existence of osteoblasts means that the skull fracture was more than a week old. The
prosecution never presented rebuttal evidence on the issue nor addressed it in closing. Given the
uncontradicted state of the record, there was no occasion to bring additional scientific texts to the attention
of the jury. The defendant had no burden to elicit a concession from the Commonwealth's expert,
particularly where that expert had already stated, on direct examination, that he did not know the
significance of the periosteum in the fracture site specimen. 5:30-31. The Commonwealth's radiologist, Dr.
Robert Cleveland, agreed that microscopic studies of the skull fracture could reveal evidence about the skull
fracture's age that could not be detected by radiological means. 3:224. The required finding motion should
have been granted because the conclusively exculpatory pathology evidence was unrebutted.
II. The Commonwealth argued that there is some reason to doubt Dr. Jan Leestma's
qualifications to give the unrebutted conclusive testimony concerning the presence and significance of
osteoblasts and growing bone at the skull fracture site. The Commonwealth's witness, Dr. Umberto De
Girolami, testified that the Dr. Leestma’s text on forensic neuropathology is authoritative and that Dr.
Leestma's qualifications to address the forensic issues are superior to his own. 5:43-45. Dr. Leestma was
qualified as an expert in the fields of forensic neuropathology, neuropathology, and pathology, 9:29, while
Dr. De Girolami was qualified solely in neuropathology. 4:260.
III. This Court can and should take judicial notice, based upon the authoritative scientific texts
cited in Woodward's Reply Brief (see page 3, fn 2), that, during the fracture healing process, osteoblasts do
not appear in less than seven days. Matters which are proper subjects of judicial notice are not limited to
familiar or widely known facts, as distinguished from relatively "arcane" scientific facts which are well-
known and undisputed in a specialized scientific field, such as pathology. For example, at the request of
the Commonwealth, even though the justices were probably unfamiliar with the physics underlying radar,
this Court took judicial notice of scientifically established facts pertaining to the operation of radar in
Commonwealth v. Whynaught, 377 Mass. 14, 17 n.1 (1979). Though the Court was not conversant or
familiar with the serology underlying blood testing to determine paternity, it relied upon published
authorities in the relevant scientific field and took judicial notice of the scientific certitude on which such
testing is based in Commonwealth v. D'Avella, 339 Mass. 642, 645-646 (1959)(citing the Journal of
Immunology). The serological facts of which this Court took judicial notice in D'Avella and the physics
involved in Whynaught are neither more nor less arcane than the scientific fact that, according to the
authoritative texts in the science of pathology, osteoblasts do not appear at the skull fracture site in less
than seven days. The pathology texts relied upon as the basis for judicial notice are even more authoritative
than the series of articles cited in D'Avella and Whynaught, because these pathology texts are the black
letter "hornbooks" of pathology.
IV. In response to Justice Abrams' question as to whether Dr. Eli Newberger's testimony
alone could support a verdict of second-prong malice second-degree murder, Mr. Silverglate responded "yes,
if believed." Dr. Newberger testified that his opinion that the skull fracture was new, which was based
exclusively on in vivo diagnostic techniques such as radiography, would change if there were
neuropathological evidence showing that the injury was old, 7:147, demonstrating the comparatively indirect
nature of the in vivo data underlying Dr. Newberger's opinion with respect to the age of injury versus the
admittedly more direct and superior cellular evidence of an injury's age that can be provided, post-mortem,
only by microscopic pathological examination of tissue and bone. Dr. Newberger agreed that his opinion
was subject to confirmation, or correction, by neuropathological analysis. The defense presented
unrebutted neuropathological evidence that conclusively undermined Dr. Newberger's diagnosis because the
latter was based exclusively on inexact, non-cellular data such as in vivo radiography.
Respectfully submitted,
Harvey A. Silverglate
BBO #462640
Andrew Good
BBO #201240
Silverglate & Good
83 Atlantic Avenue
Boston, MA 02110-3711
Tel: (617) 523-5933
Fax: (617) 523-7544
Barry C. Scheck
Benjamin N. Cardozo School of Law
55 Fifth Avenue, Room 1701
New York, NY 10003
Tel. (212) 790-0368
Elaine Whitfield Sharp
BBO #565522
WHITFIELD SHARP & SHARP
196 Atlantic Avenue
Marblehead, MA 01945
Tel. (617) 639-1862
Certificate of Service
I, Andrew Good, hereby certify that I have this day served the foregoing motion on Assistant
District Attorney Sabita Singh, 40 Thorndike Street, Cambridge, MA 02141 by causing a true copy of same
to be faxed and mailed via first class mail.
____________________________
Andrew Good
Date: March 10, 1998