COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH
No. SJC-07635
COMMONWEALTH,
Appellee,
v.
LOUISE WOODWARD,
Defendant-Appellant.
ON APPEAL FROM A JUDGMENT AND ORDER
OF THE SUPERIOR COURT
____________________________________________________________
REPLY BRIEF OF DEFENDANT-APPELLANT
____________________________________________________________
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
Date: March 2, 1998
TABLE OF CONTENTS
Table of Authorities ii
I. THE COMMONWEALTH'S FAILURE TO REBUT DEFINITIVE AND CONCLUSIVE
HISTOLOGICAL EVIDENCE THAT THE SKULL FRACTURE DID NOT OCCUR ON FEBRUARY
4, 1997, REQUIRES A NOT GUILTY FINDING 1
II. IF THE COMMONWEALTH'S FAILURE TO REBUT OSTEOBLASTS IN THE DURA AT THE
SKULL
FRACTURE SITE DOES NOT REQUIRE AN ACQUITTAL, THE DENIAL OF A SECOND
AUTOPSY, ORDER TO PRESERVE THE SKULL FRACTURE, AND BELATED DISCLOSURE OF
SKULL FRACTURE PHOTOGRAPHS DEPRIVED WOODWARD OF A REQUIRED FINDING AND
A FAIR TRIAL 6
(1) Defense Opportunity to Monitor Autopsy 8
(2) Defense Counsel's Supposed Failure to Request the
Newton Court to Preserve the Skull Fracture 9
(3) The ME's failure to preserve the skull fracture imputed
to the Commonwealth 9
(4) The burial of the skull fracture as prejudicial in light of
the late-produced photographs 11
III. THE TRIAL COURT ERRONEOUSLY REFUSED WOODWARD'S REQUESTED ACCIDENT
INSTRUCTION 15
IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT
THE JURY THAT MALICE REQUIRES PROOF THE DEFENDANT WAS SUBJECTIVELY AWARE
OF THE
LIFE-ENDANGERING RISK POSED BY HER CONDUCT 19
V. IT WAS AN ABUSE OF DISCRETION, UNDER THE FACTS AND CIRCUMSTANCES HERE, FOR
THE TRIAL COURT
TO REFUSE EITHER TO FULFILL THE JURY'S REQUEST FOR DR. LEESTMA'S TESTIMONY
OR TO INFORM THE JURY OF HOW AND WHEN ITS REQUEST MIGHT BE FULFILLED 22
Addendum
TABLE OF AUTHORITIES
CASES
Brady v. Maryland,
373 U.S. 83 (1963) 9, 12
Canipe v. Commonwealth,
491 S.E.2d 747 (Va. App.1997) 20
Commonwealth v. Amazeen,
375 Mass. 73 (1978) 1
Commonwealth v. Bouvier,
316 Mass. 489 (1944) 1
Commonwealth v. Cass,
392 Mass. 799 (1984) 19
Commonwealth v. Catalina,
407 Mass. 779 (1990) 16
Commonwealth v. Curtis,
417 Mass. 619 (1994) 21
Commonwealth v. D'Avella,
339 Mass. 642 (1959) 2, 3
Commonwealth v. Ferguson,
30 Mass. App. Ct. 580 (1991) 16
Commonwealth v. Fitzpatrick,
18 Mass. App. Ct. 106 (1984) 23
Commonwealth v. Gliniewicz,
398 Mass. 744 (1986) 14
Commonwealth v. Hunter,
No. 07213 (Sup. Jud. Ct. Feb. 20, 1998) (Slip Op) 12
Commonwealth v. Kane,
388 Mass. 128 (1981) 20
Commonwealth v. Kater,
421 Mass. 17 (1995) 1
Commonwealth v. Kelley,
370 Mass. 147 (1976) 1
Commonwealth v. Lam Hue To,
391 Mass. 301 (1984) 15
Commonwealth v. Olszewski,
401 Mass. 749 (1988) 12, 13
Commonwealth v. Sires,
405 Mass. 598 (1989) 24
Commonwealth v. Skinner,
408 Mass. 88 (1990) 21
Commonwealth v. Sneed,
413 Mass. 387 (1992) 17
Commonwealth v. Starling,
382 Mass. 423 (1981) 21
Commonwealth v. Vaughn,
23 Mass. App. Ct. 40 (1986) 1
Commonwealth v. Willie,
400 Mass. 427 (1987) 12
Commonwealth v. Zezima,
387 Mass. 748 (1982) 19
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
43 F.3d 1311 (9th Cir. 1995)
on remand from the Supreme Court, 509 U.S. 579 (1993) 6
Martinez v. Wainwright,
621 F.2d 184 (5th Cir. 1980) 9
Mullaney v. Wilbur,
421 U.S. 684 (1975) 19
STATUTES
G.L. c. 38, § 4 7, 8
G.L. c. 90, § 24(1)(e)2
Va. Code Ann. § 18.2-3120
MISCELLANEOUS
Convicted by Juries, Exonerated by Science: Case
Studies in the Use of DNA Evidence to Establish
Innocence After Trial (U.S. Dept. of Justice,
National Institute of Justice: 1996) 2
O.W. Holmes, 10 Harvard L. Rev. 457, 469 (1897) 19
Andrew E. Rosenberg, M.D., "Skeletal System and Soft
Tissue Tumors" in Robbins, Pathologic Basis of Disease
(5th ed.:W.B. Saunders Co., Philadelphia, 1994) 3
Alan L. Schiller, "Bones and Joints" in Rubin and Farber,
Pathology (2d ed.: J.B. Lippincott, Philadelphia, 1994) 3
I. THE COMMONWEALTH'S FAILURE TO REBUT DEFINITIVE AND CONCLUSIVE
HISTOLOGICAL EVIDENCE THAT THE SKULL FRACTURE DID NOT OCCUR ON
FEBRUARY 4, 1997, REQUIRES A NOT GUILTY FINDING.
The Trial Court and the Commonwealth err in stating the jury was free to reject all defense expert
testimony and that hence Woodward's motion for a required finding was properly denied after the evidence
closed. A-530-531; CB 74. To the contrary, the sufficiency of the Commonwealth's evidence can, and here
did, "deteriorate between the time the Commonwealth rested and the close of all the evidence."
Commonwealth v. Kelley, 370 Mass. 147, 150 n.1 (1976); Commonwealth v. Amazeen, 375 Mass. 73, 80
n.5 (1978); Commonwealth v. Kater, 421 Mass. 17, 20 (1995), Commonwealth v. Bouvier, 316 Mass. 489
(1944).
Hard scientific evidence has at least as great a capacity to "deteriorate" the Commonwealth's case as
does such highly reliable non-scientific evidence as a prison record which, unless rebutted by the
Commonwealth, conclusively establishes alibi. Commonwealth v. Vaughn, 23 Mass. App. Ct. 40, 45
(1986).1 One may posit analogous examples of scientific evidence in this category of conclusively
exculpatory, unless rebutted. Unless rebutted by the government, for example, a defense case that includes
evidence of exculpatory markers observed in a ballistician's microscopic examination of a projectile can
preclude, as a matter of law, a beyond-a-reasonable-doubt finding, based on evidence the prosecution
presented, that the defendant's weapon fired the fatal shot. Certain DNA findings can produce exculpatory
evidence that, unless rebutted, is conclusive. See Convicted by Juries, Exonerated by Science: Case Studies
in the Use of DNA Evidence to Establish Innocence After Trial (U.S. Dept. of Justice, National Institute of
Justice: 1996). Scientific evidence showing a driver's blood alcohol was below .05%, unless rebutted,
establishes that he was not under the influence. G.L. c. 90, § 24(1)(e). Unless rebutted, scientific evidence
excluding paternity mandates a required finding in a bastardy case, and the ruling would be the same in a
criminal non-support case. Commonwealth v. D'Avella, 339 Mass. 642 (1959).
The defense presented such evidence here; the Commonwealth's failure to rebut requires a finding of
not guilty. A verdict of guilt required proof that the impact which caused the skull fracture occurred on
February 4th. Dr. Leestma testified that, on microscopic examination of a specimen taken from the epidural
surface of the dura immediately beneath the skull fracture site, he observed osteoblasts and other signs of a
reaction to, and healing of, the fracture. This precluded the occurrence of the fracture on February 4
because the healing and reaction could not have occurred during Matthew's hospitalization but rather take
weeks (10:186-187), proving the skull fracture was "weeks old." 9:105-110. See DB 25-26.
No prosecution evidence rebutted Dr. Leestma's testimony that: (1) the dural specimen (exhibit 94)
came from the key location immediately beneath the fracture where it crossed the mid-line; (2) upon
microscopic examination, periosteum, osteoblasts and growing bone were present on the epidural side of the
dura in the specimen from that location; (3) based on bone pathology science, which underlies the technique
and analysis used by Dr. Leestma, it is a scientific certainty that identification of these cellular structures
observed by Dr. Leestma in this location establishes the fracture's age as more than the five days that
Matthew Eappen survived in the hospital;2 and (4) these cellular findings confirm the biological reaction to,
and healing of, the "weeks old" fracture that excludes February 4th.
On this record, there can be no question that Dr. Leestma saw the osteoblasts under the microscope
and that the Commonwealth had the opportunity through expert testimony to rebut his finding if it could.
10:109-111, 185-187. The Commonwealth acknowledges that, on direct, Dr. De Girolami testified that he
saw "a few extra cells on the outer surface of the dura" and "he gave no testimony concerning the presence
or absence of a bone healing process" on direct or cross. CB 73. Referring to the slide in question, Dr. De
Girolami stated (5:30-31), that he saw this microscopic area of "roughening", "bigger than diameter of this
piece of chalk, " but "I don't know what significance this finding has", and added "that bits and pieces of
periosteum became dislodged and became attached to the dura, that's one possibility," which does not
contradict Dr. Leestma's testimony. DB 26 n.15. This observation by Dr. De Girolami not only fails to
contradict Dr. Leestma's testimony but to an extent supports it, for it confirms Dr. Leestma's having
observed the cells he identified as osteoblasts. The Commonwealth understood the powerfully exculpatory
significance of Dr. Leestma's testimony. It was free to, but did not, proffer rebuttal testimony by recalling
Dr. De Girolami or Dr. Feigin, or by presenting one or both of the other two neuropathologists on its expert
witness list to contest Dr. Leestma's identification of osteoblasts signifying healing and hence the
exculpatory chronicity of the fracture. The Commonwealth falsely claims that the Court precluded it from
presenting such rebuttal. CB 73. The only rebuttal the Commonwealth proffered and the Trial Court
precluded was that of a pediatrician that did not address to the age of the fracture. Commonwealth's
Motion in Limine to Request the Court for Leave to Call Rebuttal Witness Dr. Robert Reece, Dkt. # 119;
13:271; 14:194.
The Commonwealth's evidence fails to overcome the deteriorating impact of Dr. Leestma's cellular
findings which make it impossible for a rational jury to convict beyond a reasonable doubt. What
prosecution testimony there was tends to support Dr. Leestma. The direct of Dr. Cleveland on the limited
capacity of radiography to date the fracture was as follows:
Q: ... And whether or not you can date the skull fracture. And in
explaining that to the jury, if you could indicate dating and aging
as it relates to skull fracture in general.
A: It's much, much more difficult to accurately assess age of skull
fractures. The blood supply to the bones of the skull is different,
it's not, there's not as much of it as there is to the bones of the
arms and legs. So that it's much harder, it's slower and much
harder to predict. All I can say is that the margins of the
fracture are very sharp and crisply defined. The initial
manifestation of it, radiographic manifestation of a healing
fracture, is that the dead bone at the edge of the fracture is acted
upon by certain cells of the body and are carried away. So,
radiographically, the edges of the fracture become less sharp as
healing occurs. This one is still very sharp. Therefore, it's
relatively acute. I'm not sure how acute. It could have been the
day the film was done, it could have been several days, maybe even
weeks earlier, I don't know.
3:218-219; see 3:222 (skull fracture could be weeks old). Just as
significantly, Dr. Cleveland agreed on cross that histological examination by microscopy (such
as that conducted by Dr. Leestma) can detect early cellular healing which cannot be observed by
radiography. 3:223-224.
Dr. Feigin's gross examination with his naked eye (4:246) cannot even arguably suffice to establish
that no healing of the slow-to-heal skull fracture had occurred at the molecular-cellular level, which is what
the Commonwealth must prove beyond a reasonable doubt.
Separately or in the aggregate, the Commonwealth's evidence does not meet, much less overcome,
Dr. Leestma's findings of cellular structures indicating healing of a "weeks old" injury. Taking the evidence
after both sides rested, in a light most favorable to the opponent of the required finding motion, the evidence
is insufficient, as a matter of law, to support a finding in the opponent's favor. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995)(on remand from the Supreme Court, 509 U.S. 579
(1993)). This is particularly true where the Commonwealth's burden is to establish, beyond a reasonable
doubt, a conclusion that is precluded by Dr. Leestma's findings.
II. IF THE COMMONWEALTH'S FAILURE TO REBUT OSTEOBLASTS IN THE DURA AT
THE SKULL FRACTURE SITE DOES NOT REQUIRE AN ACQUITTAL, THE DENIAL OF
A SECOND AUTOPSY, ORDER TO PRESERVE THE SKULL FRACTURE, AND BELATED
DISCLOSURE OF SKULL FRACTURE PHOTOGRAPHS DEPRIVED WOODWARD OF A
REQUIRED FINDING AND A FAIR TRIAL.
At a minimum, the Medical Examiner (ME) is required to coordinate his investigation with the
District Attorney, but not with the defense, G.L. c. 38, § 4, raising questions about the nominal
"independence" supposedly assured by the statute. The section places the ME's inquiry under the
direction and control of the District Attorney's investigation of the death.. Unlike Woodward, the
Commonwealth: (1) knew about the skull fracture found prior to death and at the autopsy, and (2) by virtue
of its right to coordinate the investigation with the ME, had an opportunity to establish the skull fracture's
age by having bone specimens taken and preserved at autopsy. In view of the state's advantages in being
assured by G.L. c. 38, § 4 of first access to the body and a right of coordination with the ME, due process,
adversarial criminal procedure precludes a reading of G.L. c. 38, as if homicide cases, unlike any other kind
of criminal matter, follow the inquisitorial system used in civil law nations. Contrary to the
Commonwealth's argument, due process does not permit the government, by statute or otherwise, to
categorically prohibit a defendant, already charged with injuring the decedent, from timely-requested access
to the body for appropriate investigation. There is nothing inviolate about the decedent's body which
excludes it from appropriate defense testing and examination. Dr. Leestma's gathering of specimens from the
dura took place under appropriately controlled conditions, and were shared with the ME, so that there
was joint access and examination of that tissue, all consistent with scientific objectivity. Unlike the ME, Dr.
Leestma took a dura specimen from the skull fracture site. This specimen generated conclusive, exculpatory
evidence, which the ME missed. The Commonwealth cites nothing in G. L. c. 38, nor articulates any other
basis for barring the defense from access to other parts of the body prior to its release for burial.
The Commonwealth argues that (1) it was defendant's fault that she did not have an observer at the
Medical Examiner's ("ME") autopsy; (2) defense counsel waived her opportunity to specify, in arguing for
an evidence-preservation order, that the skull fracture be preserved; (3) the ME's failure to preserve the
skull fracture cannot be imputed to the Commonwealth; and (4) in any event the burial of the skull fracture
was not prejudicial in light of the availability of late-produced photographs of the fracture which
supposedly leveled the playing field between prosecution and defense experts. These assertions are
blatantly wrong, belied either by the record or the law or both.
(1) Defense Opportunity to Monitor Autopsy. Unlike the police who were notified so as to be
able to observe the autopsy (Tr. 2/11/97 at 11), defense counsel had no notice or opportunity to monitor.
This was particularly unfair because, as the Commonwealth concedes (CB 21-22), the autopsy was, to a
degree, an "inherently destructive process."3
(2) Defense Counsel's Supposed Failure to Request the Newton Court to Preserve the Skull
Fracture. Unlike the Commonwealth, defense counsel was not aware of the skull fracture until February
13, 1997 (Tr. 2/13/97 at 2), the day the body was released for burial. Exhibit 51. Children's Hospital
radiography discovered the skull fracture in vivo, Exhibit 14, which was confirmed at autopsy on February
10. 4:173. The prosecutor did not reveal the existence of the skull fracture to defense counsel or to the
Newton District Court at the February 11 hearing on the second-autopsy request, or at the arraignment or
bail hearings on February 6 and 7, respectively.
(3) The ME's failure to preserve the skull fracture imputed to the Commonwealth. First,
Brady obligations have been imputed to the prosecution concerning information held by a medical examiner's
office, Martinez v. Wainwright, 621 F.2d 184 (5th Cir. 1980), and the ME's status as an agency within the
executive Department of Public Safety, together with its statutory obligation to "coordinate" the
investigation with the prosecution, makes imputation for the ME's destruction of evidence appropriate. In
any event, the ME's destruction of the skull fracture should be imputed to the Commonwealth on this
record, because of the Commonwealth's failure to make timely disclosure of the skull fracture to defense
counsel and the Newton District Court. Had the prosecutor revealed, rather than suppressed, timely
mention of the skull fracture, which would obviously figure extremely prominently in its evidence of
murder, defense counsel would have had an opportunity to secure the skull fracture's preservation by a
more precise Court order.
Having failed to make timely disclosure of the existence of the skull fracture, the Commonwealth
should not be heard to argue (CB 19-20) that the defense failed to make a showing of need for access to the
body, or to specify what tests the ME failed to perform. Defense counsel explained that she wanted "our
expert to go in and reexamine the body to test for certain types of injuries and the age of the injuries." Tr.
2/11/97 at 3. (emphasis added). The Commonwealth cannot have an inference that, even if the
Commonwealth had made timely disclosure of the skull fracture, defense counsel would not have sought
specifically to test the age of the skull fracture, and to preserve it. To the contrary, given the minimal
information disclosed to her at that point, defense counsel was as specific as she could be. She explained
that Dr. Baden, an experienced pathologist in "battered child syndrome" cases, wished to do tests "that the
Medical Examiner's Office may or may not have performed" and that once the body were released and
buried defense counsel "won't know...until it's too late" whether other tests needed to be done. Id. at 6.
Subsequent events proved defense counsel prescient.
Further, Judge Bletzer questioned the prosecutor as to whether "all of the information gathered by
the Medical Examiner will be made available to your sister [emphasis added]," to which the ADA replied,
"It absolutely will be." Tr. 2/11/97 at 7. A couple of minutes earlier, defense counsel had asked for the
preservation of "any evidence involving this matter." Id. at 4 (emphasis supplied). It is difficult to
understand how a request for preservation of "any evidence" gleaned from a state-performed autopsy, in a
case where the indictment was to charge murder by means of a skull fracture, can be interpreted to exclude
the fractured skull.
Finally, the prosecutor reported to the Court that the body had just been sent to the state Medical
Center at Worcester "for a skeletal survey" by x-ray. Id. at 8. Surely defense counsel could not be charged
with knowledge that a skull fracture had long ago been detected but that the radiologist at Worcester would
x-ray the entire body except the skull, which would then be buried without preserving specimens from the
fracture in order to determine its age.
(4) The burial of the skull fracture as prejudicial in light of the late-produced photographs.
The record shows that histological studies of specimens taken from the fractured skull bone would have
been the "best evidence" that it had begun to heal and thereby would have established that the causal impact
did not occur on the date charged. 14:190; 13:32. The prosecution's radiologist, Dr. Cleveland,
acknowledged that even x-rays could not replicate the capacity of the pathologist's microscope to make
visible, and discriminate between, types of cells on the edges of the fracture, so as to detect early healing.
3:223-24. The belatedly disclosed autopsy photographs of the skull fracture cannot supply bone
specimens to examine under a microscope, and could not cure the prejudice from destruction of the skull
fracture. This Court has recognized that, depending on the type of forensic technique involved, the
defendant has a right to access to the actual physical evidence, rather than a photograph of that evidence.
Compare Commonwealth v. Olszewski, 401 Mass. 749, 755-56 (1988)(photo of belt inadequate) with
Commonwealth v. Hunter, No. 07213 (Supreme Judicial Ct. Feb. 20, 1998) (slip op.)(no prejudice where
fingerprint comparison can be done from photographs of fingerprints without access to object from which
print was lifted).
The combination of materiality, prejudice, plus blameworthy conduct by the Commonwealth,
requires relief here. Defendant complains of more than "the Commonwealth's mere opposition to her
independent autopsy motion" (CB 27); she complains of the Commonwealth's failure to inform defense
counsel and the Court of critical information.4 Hence, this is not a case where the Commonwealth, although
party to a Brady and Willie violation, was not blameworthy enough to merit a substantial remedy.
In establishing how blameworthiness is to be assessed, this Court was clear in Commonwealth v.
Olszewski that, in weighing "the culpability of the Commonwealth and its agents, "'[c]ulpability' and 'bad
faith' are not interchangeable terms. Negligence or inadvertence are less culpable than bad faith, but they are
nevertheless culpable and must be accounted for in the balancing procedure." 401 Mass. At 749, 757 and
757 n.7 [emphasis added].5
The inverse relationship between the defendant's demonstrated need for the destroyed, material
evidence and the Commonwealth's blameworthiness is well-established. In Olszewski, supra, this Court
reversed the murder conviction and suppressed all evidence concerning the fatal weapon, a belt, which the
Commonwealth had lost, even though the Commonwealth's action was inadvertent. Here, the
Commonwealth knew that the age of the skull fracture was outcome determinative and, if it failed to
perceive the significance of the age of the injury in the case, defense counsel specifically mentioned it at the
second-autopsy hearing on February 11. Nonetheless, the Commonwealth did not inform defense counsel
or the Court, with disastrous consequences for fairness.
The Commonwealth's misconduct resulted in an unduly narrow evidence-preservation order which
failed specifically to require preservation of the skull fracture. This conduct does not permit the
Commonwealth to escape the reach of Commonwealth v. Gliniewicz, 398 Mass. 744 (1986). There, the
defendant's boots were tested by an outside forensic serology lab retained by the Commonwealth. These
tests detected minute bloodstains, but the evidence was destroyed in the testing. This destructive testing
was done in violation of a pre-trial conference report that required the Commonwealth to allow inspection
of "material and relevant physical evidence and documents...." Id at 746.6 Because the evidence had been
destroyed by the Commonwealth's testing "so that comparable testing by the defendant was not possible"
(id at 748), this Court reversed and granted defendant's motion to preclude the Commonwealth's use of the
results of its test.
In its discussion, this Court noted in Gliniewicz thatpreclusion of the Commonwealth's use of the
test results at a new trial was an appropriate remedy only because preclusion would entirely eliminate the
prejudice caused by the destructive test. Id at 747. The Court noted, however, that "the granting of a
motion to dismiss (rather than a new trial) would be an appropriate remedy 'where failure to comply with
discovery procedures results in irremediable harm to a defendant that prevents the possibility of a fair
trial.'" Id at 747 (citing Commonwealth v. Lam Hue To, 391 Mass. 301, 314 (1984)). In the case at bar, the
destroyed evidence was the basis for what would have been additional conclusive evidence that the skull
fracture could not have occurred on February 4th. If this Court finds that the defendant has not made a
sufficiently conclusive showing in Argument I, supra, of entitlement to a required finding of acquittal, the
fault lies in the Commonwealth's failure to preserve the skull, or even to inform defense counsel and Judge
Bletzer of the finding of a skull fracture. Hence, dismissal is the logical alternative remedy to a required
finding.
III. THE TRIAL COURT ERRONEOUSLY REFUSED WOODWARD'S REQUESTED
ACCIDENT INSTRUCTION.
The Commonwealth argues that: (1) under the criminal law of accident, only evidence of an
unintentional, non-volitional act of the defendant on February 4, 1997, which could have been an accidental,
contributing cause of Matthew Eappen's death, would entitle her to an accident instruction (CB 47); (2) as a
factual matter, there was no such evidence (CB 43-46); (3) in any event, the malice instruction sufficed (CB
49); and (4) the absence, under the third prong malice instruction, of a requirement of proof that the
defendant subjectively intended the result is immaterial (CB 50).
The criminal law has never limited the affirmative defense of accident or misadventure to an
unintentional, non-volitional act of the accused, such as a spastic action, or tripping and falling on the
victim. A defendant's intentional and volitional, but lawful act, which causes an unintended death does not
constitute criminal homicide, and if any view of the evidence supports the occurrence of such an accidental
event, the defendant is constitutionally entitled to an instruction requiring the government to disprove
accident. See Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 583 (1991)(accident instruction required
based on defendant's intentional kicks, which may have accidentally struck police while attempting to right
himself as a he struggled to flee over a fence). It is not a crime, much less criminal homicide, to intentionally
serve food to a person who, unbeknownst to the server, has a lethal intolerance for an ingredient and dies.
Apart from a motor vehicle or other negligent homicide made criminal by statute, even intentional, but
negligent, acts which cause unintended deaths do not constitute criminal homicide. Commonwealth v.
Catalina, 407 Mass. 779, 786-87 (1990). Otherwise, even in the absence of a negligent homicide statute,
medical malpractice or intentional but negligent conduct in the workplace, which proximately causes a death,
would constitute criminal homicide.
The Commonwealth's cases (CB 47 n.13) involving intentionally committed, unlawful and
inherently dangerous acts, such as firing a pistol at the ground in the direction of the victim, grabbing the
victim by the throat, or wrapping a cord around the victim's neck, in which the defendant was not entitled to
an accident instruction for the unintended results of such acts, are irrelevant to Woodward's claim on this
record. Here, the defense of accident could result in an acquittal because it is at the not-guilty end of the
spectrum of possible legal outcomes supported by this record. The evidence supports three legal outcomes:
(1) accident: death caused by bleeding or rebleeding of a prior subdural hematoma due to Woodward's
lawful handling of Matthew, even if "not as gentle as [she] might have been," but not amounting to a
battery; (2) battery: death resulting from bleeding or re-bleeding of a prior hematoma, but without proof that
Woodward unreasonably disregarded a "high likelihood that substantial harm will result;" and, at most, (3)
fatal-battery manslaughter: death resulting from bleeding or re-bleeding of prior hematoma where
Woodward, contrary to what a reasonably cautious person would have done, disregarded the risk of
substantial harm. Commonwealth v. Sneed, 413 Mass. 387, 394 n.5 (1992). Woodward contends that a
required finding of not guilty should have been entered, because the evidence is insufficient to support the
only charge submitted to the jury, murder, and because the offense defined by the third prong malice
instruction does not and should not constitute murder in Massachusetts.
Woodward's defense included evidence that her handling of Matthew Eappen on February 4, not
constituting a criminal battery, could have contributed as an accidental cause of Matthew Eappen's death.
The Commonwealth acknowledged (CB 47 n.12) that Woodward testified that she told the police that, in
her haste to ready Matthew for a nap, she undressed and dressed Matthew Eappen somewhat hurriedly as
she bathed him on February 4, and that, "maybe I wasn't as gentle as I might have been." 13:229. Though
she acknowledged handling Matthew all that day, she denied being aware that anything she did harmed
Matthew. The defense's evidence also included expert testimony that there had been a pre-existing subdural
hematoma in which re-bleeding could be triggered by "a mild jar" (9:173), a "relatively trivial trauma"
(11:30), or a "trivial amount" of force (12:96-97).
Woodward's testimony, when combined with that of her experts, sufficed to inject the affirmative
defense of accident into the case so that the instruction requiring the Commonwealth to disprove accident
was constitutionally required. This is particularly true because the third prong malice instruction only
required proof that Woodward's acts, but not the harm, were intentional and non-accidental. As we have
shown, an accident that qualifies for an instruction may also involve an intentional act followed by
unintended results. For this reason, unlike a case where the jury instructions included malice based on an
intent to cause the lethal result, the jury's finding of third prong malice, which does not require subjective
awareness of the likelihood of a lethal result, does not provide the constitutionally required assurance that it
found that the Commonwealth disproved accident, rather than imposing a burden on the defendant to prove
accident. Mullaney v. Wilbur, 421 U.S. 684 (1975). Woodward's federal and state due process rights
were violated because the instructions failed to establish the required nexus between proof of malice and
disproof of accident. Commonwealth v. Zezima, 387 Mass. 748 , 756 (1982).
IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT MALICE
REQUIRES PROOF THE DEFENDANT WAS SUBJECTIVELY AWARE OF THE LIFE-
ENDANGERING RISK POSED BY HER CONDUCT.
This Court should reject the Commonwealth's plea to uphold the murder instruction because of the
longevity of third prong malice law. Even Holmes, the rule's leading advocate, would recoil: "The antiquity
of a rule is no measure of its soundness. 'It is revolting to have no better reason for a rule of law than that it
was laid down in the time of Henry IV.'" Commonwealth v. Cass, 392 Mass. 799, 805-06 (1984), quoting
Address by O.W. Holmes, 10 Harv. L. Rev. 457, 469 (1897). The Commonwealth warns that a ruling that
the accusation of murder requires proof that the defendant was subjectively, rather than merely objectively,
aware of the life endangering risk posed by her conduct would unmoor the definition of murder from the
standard of "morality of law abiding citizens," and that the accused's state of mind could thenceforth be
"measured by the morality of the basest of persons." CB 57. The consensus of Anglo-American homicide
law is otherwise. Outside the context of the felony-murder rule, the vast majority of American jurisdictions
(40) require proof of at least a subjective awareness of risk of death for a murder conviction. The table
attached to this brief shows that twenty-six states require proof that the defendant acted with conscious
indifference to a known risk of death or harm. Fourteen require proof that the defendant intentionally,
purposefully, or knowingly killed or inflicted serious bodily harm. Nine require proof that the defendant
acted with depraved indifference to human life or an abandoned or malignant heart. Our research has
uncovered only one state other than Massachusetts, Virginia, that permits a murder conviction to rest on
proof that the defendant engaged in conduct that is likely to cause death, but Virginia, unlike Massachusetts,
does not permit a murder conviction based on a finding that "a reasonably prudent person would have
known" of that likelihood. Va. Code Ann. § 18.2-31; Canipe v. Commonwealth, 491 S.E.2d 747, 753 (Va.
App.1997).
Though the merit of this claim of error is unaffected by this Court's affirmance of the conviction in
Commonwealth v. Kane, 388 Mass. 128 (1981), in the unlikely event that third prong malice was the sole
theory of murder presented to Kane's jury (we are attempting to verify that intentional murder was also
submitted, because evidence of the defendant's repeated abuse tended to prove intentional killing), it remains
true that this Court affirmed Kane's conviction, as in Commonwealth v. Starling, 382 Mass. 423 (1981), by
ruling jury could infer Kane subjectively foresaw serious injury. Id. at 134.
The Commonwealth suggests that, if it occurs in this case, the demise of third prong malice should
not affect Woodward's conviction but should operate prospectively only. CB 57 n.16. There is no reason
why Woodward should be deprived of the benefit of such a ruling, since she preserved the issue for direct
review by fairly raising it during the trial, and the Trial Court's adverse Rule 25(b)(2) decision on the merits
of the issue preserves the claim for direct review. Commonwealth v. Skinner, 408 Mass. 88, 92 (1990); DB
47 n.36. The number of other convicts whose murder convictions are based solely on third prong malice is
either zero or very close to zero, and overruling third prong malice in this case would affect only defendants
whose convictions are not yet final and who raise the claim on direct appeal. Commonwealth v. Curtis, 417
Mass. 619 (1994). Hence, fear of the potential consequences of such a ruling is unfounded.
V. IT WAS AN ABUSE OF DISCRETION, UNDER THE FACTS AND CIRCUMSTANCES
HERE, FOR THE TRIAL COURT TO REFUSE EITHER TO FULFILL THE JURY'S
REQUEST FOR DR. LEESTMA'S TESTIMONY OR TO INFORM THE JURY OF HOW
AND WHEN ITS REQUEST MIGHT BE FULFILLED.
The Commonwealth argues it was not an abuse of discretion for the Trial Court to alone decide, in
the circumstances here, that the jury should not even have been informed that counsel and the Court "would
have had to review the 444 page transcript" or "eight hours worth of tapes before coming to an agreement"
as to which portions of Dr. Leestma's testimony fit the jury's request. (CB 66) The Commonwealth
concedes that it took "nearly" -- that is, less than -- "two hours for the parties to agree on Dr. Madsen's
testimony, which was half as lengthy as Dr. Leestma's" (CB at 66); hence it would have required less than
four hours to perform the same job as to Leestma. Indeed, it almost certainly would have required even less
time, since (1) the parties would have had the benefit of the electronic search capabilities in the videotapes
(17:29), (2) the stenographer said she could locate the relevant portions "without a great deal of expenditure
of time" (17:21), and (3) the parties would be guided by the extensive notes taken by the trial judge and
counsel, which notes agreed on the location of the relevant testimony (17:21-22). The Commonwealth
cannot deny that there was here no "failure [by counsel] to direct the judge's attention with clarity to the
testimony he wished read or summarized." Commonwealth v. Fitzpatrick, 18 Mass. App. Ct. 106, 108 and
108 n.5 (1984).
The Commonwealth admits that Leestma's serum testimony was "dependent upon Dr. Madsen's
testimony." CB 68. The jury had already re-heard Dr. Madsen's identification of spurting serum, and it was
now asking to re-hear Leestma on the significance of Madsen's observation. It is untrue that reading back to
the jury the second piece to this puzzle "would have overemphasized the defendant's theory." CB 68.
Rather, it would have completed the picture per the jury's plea.
As for the exculpatory value of Dr. Leestma's testimony on the significance of Dr. Madsen's
observation of serum, the Commonwealth says it "was equivocal, at best." CB 69-70 However, it was for
the jury to decide if Leestma's testimony as to significance, combined with Madsen's observation,
supported, at the least, a reasonable doubt. The jury itself deemed this evidence "critical to advance
deliberations."17:39. The Commonwealth's assertion that "the defendant cannot show prejudice" (CB 70-
71) since the jury deliberated for an additional ten hours is wrong; the jurors "were clearly struggling with
the question..., returning twice to question the judge...." Commonwealth v. Sires, 405 Mass. 598,601 (1989).
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: March 2, 1998