Prosecutors in the Louise Woodward baby killing case have said that the judge's reduction to manslaughter of the jury's second degree murder verdict constitutes an error of law.
In briefs filed in a Boston court yesterday, in advance of Friday's appeal hearing, they say Woodward should not be allowed to claim a miscarriage of justice based on a legal error she invited.
A jury convicted Woodward of second degree murder, finding that she killed Matthew Eappen, an eight-month-old baby then in her care.
Woodward, now 20, was accused of shaking and slamming the baby, causing fatal skull injuries in February 1997. The baby died five days later.
A judge reduced the conviction to manslaughter and set Woodward free, sentencing her sentence to the 279 days she had served since her arrest. Prosecutors are asking Massachusetts' highest court to reinstate the second degree murder conviction, based in part on the fact that Woodward had asked that the jury not be given the option of convicting her of manslaughter.
'A jury cannot be criticised for going astray if it fails to return a verdict that was not an option,' prosecutors said. 'The defendant cannot benefit from an error she invited.'
Defence lawyers have asked that she be cleared of all charges.
The prosecution also criticised the defence for its claim that the jury rejected defence medical experts because they were paid high sums for their evidence. Prosecutors called the claim an insult to jurors.
Woodward's lawyers have asked that the Supreme Judicial Court find their client innocent or dismiss the charges entirely. Should the court reject that bid, the defence lawyer, Mr Harvey Silverglate, said the court should affirm Judge Hiller Zobel's reduction and accompanying 279 day jail sentence.
The defence maintained throughout the trial that the baby died of an old injury. Because the prosecution never rebutted that, the defence argued in its latest briefs, the old injury must stand as a fact.
The prosecution's failure to rebut the defence claim that the baby died of a pre-existing injury necessitates an innocent finding, the defence said.
But Mr Marc Perlin, who teaches civil and court procedure at Suffolk University Law School, said the prosecution is not obligated to rebut the defence testimony.
'As long as there was evidence at the trial presented by the prosecution of the defendant's guilt, and the jury believed that, they are justified in coming back with the verdict that they did,' Mr Perlin said.