Woodward's team put faith in overlooked photographs

Will the soap-opera of the Louise Woodward case ever end? Last week we had the conviction; today the defence will go all out to have it reduced or even thrown out. David Usborne analyses the tactics that defence and prosecution plan to follow.

The defence team will ask the judge, Hiller Zobel, to set aside the conviction handed down by the jury last week and demand a retrial on grounds that the prosecution failed to deliver until mid-trial a crucial piece of exculpatory evidence.

The defence last night submitted a motion for Woodward's conviction to be mitigated that brings up an apparent, and hitherto barely noticed, misstep by the prosecution. It also asks simultaneously, that barring the granting of a retrial, Woodward be declared not guilty of all charges and acquitted or, at least, given a lesser conviction of manslaughter.

The prosecution similarly submitted motion documents last night, reasserting all the evidence it says points to Woodward's guilt in fatally assaulting Matthew Eappen on 4 February. It opposes the manslaughter request and denies the allegation of late provision of evidence. Expectations that Judge Zobel may grant a retrial will be reinforced by the belated- evidence claim. At issue are two photographs of the skull fracture inflicted on Matthew which, says the defence, give credence to its claim that it was as much as three weeks old.

The pictures were not provided at the start of the trial for this reason: they were only discovered by the medical examiner, Michael Feigin, at the back of a cupboard in his office, when the trial was almost over. Thus the defence could only present them to the jury after both sides had rested their cases. That was unfair, the defence claims, and therefore a new trial will have to be called.

That unfairness is based on several contentions. For one, the jury was essentially exhausted by the trial's end and unable to absorb more medical evidence, however critical. More importantly, it denied the defence the opportunity effectively to cross-examine prosecution witnesses on the age of the fracture, and particularly Dr Feigin.

He testified that the edges of the fracture seemed to show "no real beginning of healing" and showed "very sharp angle to it, no rounding or smoothing of them whatsoever". The later pictures did show rounding and a smoothing of the crack. "Cross-examination of Dr Feigin, in particular, concerning these photographs would have effectively impeached his testimony, for it was he who was present when they were made," the defence asserts.

Of the delay in handing the pictures over, the defence added: "The jury would have been able to infer that the delay in disclosure occurred in order to shield the medical examiner, and other witnesses as well, who testified for the prosecution ..." These are serious allegations, which, some experts said could drive Judge Zobel to opt for a retrial.

However, the prosecution notes that on the manslaughter question the defence opted to withhold from the jury the chance to consider manslaughter as well as murder.

The younger sister of Louise Woodward yesterday spoke for the first time since the 19-year-old was convicted and said she and her family have been overwhelmed by the support shown by the public. Vicky Woodward, 18, has stayed in the background while a huge campaign has got under way.

In a statement last night she said: "I am encouraged by the strength of feeling throughout the world as to my sister's innocence and I hope to see her back home where she belongs very soon."