Woodward faces the hardest choice of all

The eyes of Britain and America are on Judge Hiller Zobel who tomorrow will be asked by Louise Woodward's defence team to mitigate the murder verdict given by the jury in her trial last week. He faces a complicated choice but, as David Usborne explains, it is Louise herself who may have the hardest decision.

Louise Woodward says she is innocent. If that is so, then she may shortly face a dilemma unfathomable in its wretchedness. Should the judge in her murder trial, Hiller Zobel, decide after hearings tomorrow to lessen the verdict given by the jury last week from Murder Two to manslaughter, she will need to profess her guilt to the court.

Meanwhile, as Ms Woodward waited in her cell at the Framingham maximum security prison outside Boston yesterday, another critical element was uncovered by The Independent: under seal of the court, there exists, according to police sources, a videotape showing Deborah Eappen, the mother of the victim, Matthew, coaxing his elder brother Brendan - vainly - to say that Ms Woodward committed the murder.

It is certain that when the defence team goes before the judge tomorrow it will exercise its right to implore the judge to consider three options, aside from upholding the verdict: to throw out the verdict and declare an acquittal; to order a retrial from scratch; or, indeed, to reduce the charge to manslaughter. Written motions will be submitted by the defence to the court this afternoon.

Many experts believe that if Judge Zobel chooses any of these three, it will be the last. But there is no certainty that Ms Woodward would co-operate. Her agony, if indeed she is innocent, will be this: does she agree to plead guilty to manslaughter of a small child and ensure that she is home soon, probably before the millennium? Or does she maintain the purity of her innocence and consign herself to perhaps 15 or 20 years of incarceration?

All that we know of Ms Woodward so far suggests that she may resist the manslaughter compromise, even though it would leave Judge Zobel to decide on a sentence that could end being three to five years imprisonment or less. Whether through pride, stubbornness or some higher faith in the powers of justice, Ms Woodward has shown no willingness to compromise the purity of her declared innocence.

Indeed almost the last words we heard from her were at the moment of sentencing last Friday when she briefly rose to say: "I would like to maintain my innocence". And when it was asked what charges it would like the jury to consider before deliberations began last Tuesday, the defence opted for murder in the first- or second-degrees, or nothing at all, that is acquittal. That gamble, of course, backfired.

One juror was quoted in one British newspaper yesterday saying that the jury regretted not having manslaughter as an option it could consider. She said later, however, that she had been misquoted.

While the chances of the judge simply declaring an acquittal are considered infinitessimal, it is not beyond imagination that he could take the middle option: calling a retrial. In that circumstance, the first step one would expect would be a plea bargain negotiation between the two sides which would involve asking Ms Woodward to take exactly the same decision: agreeing to plead guilty to manslaugther.

Questions then arise about what tactics the defence would adopt if such negotiations failed and a new trial did become necessary. Would it open those doors it so conspicuously, and controversially, left closed in the first trial? Would it offer an explanation, an alternative scenario - of how Matthew may have died if Ms Woodward did not do it. Many observers feel it was an error not to have done this in the first trial. And would the defence directly challenge the credibility of the parents who say they had nothing to do with Matthew's death nor knew of any other possible explanation for it?

In that scenario, the videotape, about which the jury was told nothing, could become critical. While The Independent has not seen it, the police sources say that it lasts 30 minutes and was filmed by Deborah Eappen. It allegedly shows Brendan, the elder brother, on the floor of the home painting while his mother repeatedly asks him to say that Ms Woodward harmed Matthew. He replies in the opposite sense, with one-sentence remarks along the lines that he loved Louise, Matthew loved Louise, and Louise loved them.

It is also possible that the defence could examine the behaviour of Brendan himself. Aged two years and eight months when Matthew died, Brendan was a boisterous boy who, according to the testimony of Ms Woodward on the stand would occasionally leap on his brother from his full height.

Also under examination now is the role of EF Au Pair, the agency that placed Ms Woodward with the Eappens in November last year. It is widely assumed that the Eappens will shortly file a civil suit against the agency and that the couple may be hoping to get as much as $20m in a liability settlement.

Theoretically, a manslaughter outcome could harm EF Au Pair's interests because it implies recklessness on the part of their client, Ms Woodward. Sources say, however, that they would be insured in that instance. If Murder Two is maintained, the insurance would not apply but EF Au Pair could claim that because the killing was intentional it has no liability.