Woodward Case: Judge sees confusion and fright, rather than malice

It begins with a quotation from John Adams and reminds readers that the author can relate to the tragedy of the case because he is a grandfather. But, says David Usborne, the memorandum released by Judge Hiller Zobel is ultimately a serious, tightly-written argument for leniency for a victim of a `miscarriage of justice'.

The 16-page order and memorandum is far from the letter of exoneration that Louise Woodward and her army of friends may have been anticipating. It reduces her sentence, that's true. But beyond that, there is no additional comfort for the young Briton. In announcing his intention to reduce the verdict from murder two to manslaughter, "in accordance with my discretion and my duty", Judge Zobel, offers this scenario for what he believes may have happened on the afternoon of 4 February. It is a far cry from declaring Ms Woodward innocent.

"Viewing the evidence broadly, as I am permitted to do, I believe that the circumstances in which the Defendant acted were characterised by confusion, inexperience, frustration, immaturity, and some anger, but not malice (in the legal sense) supporting a conviction of second degree murder.

"Frustrated by her inability to quiet the crying child, she was `a little rough with him' under circumstances where another, perhaps wiser, person would have sought to restrain the physical impulse. The roughness was sufficient to start (or re-start) a bleeding that escalated fatally."

Judge Zobel went on: "The sad scenario is, in my judgement after having heard all the evidence and considered the interests of justice, most fairly characterised as manslaughter, not mandatory-life-sentence murder. I view the evidence as disclosing confusion, fright, and bad judgement, rather than rage or malice."

Of the extraordinary campaign to have Ms Woodward released, Judge Zobel makes a clear statement at the very start of the document. He was in no manner swayed by it. And to make his point, he offers words of John Adams that are apt indeed.

The order begins thus: "The law, John Adams told a Massachusetts jury while defending British citizens on trial for murder, is inflexible, inexorable, and deaf: inexorable to the cries of the defendant; `deaf as an adder to the clamours of the populace'. His words ring true, 227 years later."

The populace in this case - the Woodward supporters in Elton especially - could take only disappointment from the first pages of the order. These explain why Judge Zobel saw no merit in either of the two most radical post-verdict motions for the defence: that Ms Woodward be acquitted and the verdict simply thrown out, or that a new trial be called.

Nor, Judge Zobel says, could he allow himself to be affected by the pain of the Eappens. Noting that he is both a grandfather and father, the judge wrote: "I particularly recognise and acknowledge the the indescribable pain Matthew Eappen's death has caused his parents and grandparents." He went on: "As a judge I am duty bound to ignore it.

While the chances of an instant acquittal were always remote in the extreme, in its motions, the defence made a poweful play for a retrial, citing numerous incidents as cause for such action. One by one, however, Zobel dispenses with these.

He does not accept, for instance, the defence claim that it was unfairly disadvantaged at trial by the late disclosure by the state of potentially critical photographs of Matthew Eappen's brain. Addressing the fact that some defence testimony had not been transcribed and was not available for the jury when it asked for it, Judge Zobel said it was "unfortunate" but not grounds for a re-trial.

Nor did the he accept that the jury had been unreasonably affected by pre-trial publicity of the case. "All the jurors seated satisfied the Court and counsel that neither the publicity nor any other cause had affected their individual ability to decide the case entirely on the evidence."

In reducing the sentence, Judge Zobel does not give an opinion on the defence's contention that the cause of death was a re-bleed of an old head injury. Indeed, he insists, that had the jury had manslaughter as an option on its verdict slip, it could have chosen it because the evidence could have been consistent with Woodward inflicting "roughness" sufficient to trigger such a re-bleed.

He wrote: "If the jury determines that those were the facts the combination would amount to an unjustified, intentional, uncontested-to touching (i.e. a batter) which resulted in death. Manslaughter is simply a fatal battery."

Zobel concludes thus: "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".