The crowd holds its breath for Louise as new evidence is revealed

Defence lawyers for Louise Woodward will today try everything to have her murder conviction mitigated, even if it means having to accept a sentence of manslaughter. But, as our correspondent discovered, they may have a trump card for a re-trial; photographic evidence that went missing.

As the campaign to have Louise Woodward acquitted of her Murder Two conviction reached a crescendo on both sides of the Atlantic yesterday, Woodward was preparing to accept being found guilty of the lesser, but still grievous crime; the manslaughter of baby Matthew Eappen.

In one more day of extraordinary anguish in Cambridge, Massachusetts, when almost 100 free-Louise demonstrators marched around the courthouse, Woodward's defence team last night submitted a motion to Judge Hiller Zobel for a reduced charge of manslaughter. It also came to light that when the jurors began deliberations last week, a majority believed she was innocent. By a painful, and by all accounts highly irregular process, that majority for innocence was transformed over 27 hours into consensus for guilt.

In submitting motions to Judge Zobel yesterday, the defence pushed at every available door to have Woodward's plight mitigated by asking at once and alternatively for a setting aside of the murder verdict, and thus an acquittal, for a re-trial and/or for a reduction of the charge to manslaughter.

Crucially, the defence document states that Woodward would "without in any way waiving her claim that the evidence is insufficient to support a conviction of any offence ... none the less enter a finding of guilty of the lesser included offence of manslaughter".

Most compelling may be the defence's request for a retrial on the grounds that vital photographic evidence of Matthew Eappen's skull fracture that appears to suggest it was some three weeks old was not made available by the state until almost at the end of the trial, after both sides had rested. The pictures, we learn, were lost at the back of a cupboard of the Medical Examiners Office and belatedly discovered.

"There can be little doubt that the timely disclosure of the autopsy skull photographs would have gone some material distance in giving the defence counsel the ammunition" to cross-examine prosecution witnesses, the paper says. "At the least, a retrial should be ordered". The prosecution, in its own motion, rejected as "specious" the claim that the photographs were significant or belatedly supplied. As for the motion to reduce the charge to manslaughter, it states: "The Commonwealth opposes the motion."

Senior court officials told The Independent yesterday, that Judge Zobel, if he were to agree to such a motion, would simply declare the Murder Two conviction downgraded to manslaughter. A final decision will almost certainly not be offered by the judge today, who has indicated he would rather take time to consider the issues and put his final decision in writing. If he does declare a manslaughter verdict, he would wait an additional period to deliver sentencing. Woodward has presumably been swayed finally by the knowledge that the sentence for manslaughter, would probably be three to five years with credit for the nine months already served. Thus Woodward would be home for the millennium.

Whether the plethora of information now spilling out about the extraordinary nature of the jury deliberations will influence the judge in any way is unclear. We now know, for instance, that many jurors felt aggrieved that they did not have the chance to convict on manslaughter instead of murder.

"We were in a no-win situation here," one juror, Stephen Colwell, told ABC television news. "I think if other choices were available to us, then potentially manslaughter may have been the verdict."

Most extraordinary, however, are the details of how the jury reached its final determination. Mr Colwell said that at the outset, the jury took a vote and was seven to five in favour of acquitting Woodward. But then, in a manner of working that appears to have been the reverse of instructions from the judge, the jury began by identifying areas of reasonable doubt and one by one eliminating them. Judge Zobel had told jurors to consider the charge and to throw it out if, and as soon as, reasonable doubt was acknowledged.

After taking votes on each of these individual issues, they finally, last Thursday night, began voting on the verdict itself. Three ballots were taken and they ran nine to three for conviction, followed by ten to two and eventually twelve to nothing. There were tears from jurors but no yelling, he said.

Apparently the jurors were swayed finally by two facts: their absolute faith in the testimony of doctors who first treated Matthew Eappen at Boston's Children's Hospital - an institution that is utterly revered in the city - and their inability to disappoint the Eappens if they decided to free Woodward. "There's no way we could face the Eappens or the citizens of the Commonwealth [of Massachusetts] and say 'We think she did it, but we're going to let her go'," Mr Colwell said.

Overlooked evidence;

Judge's big test, page 3