Woodward faces the hardest choice of all

Tomorrow Judge Hiller Zobel 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 Woodward 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 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 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.

Thomas Reilly, the district attorney who brought the prosecution against Woodward, said last night that the jury should have had the option of a manslaughter verdict.

Speaking on BBC News, he said: "I'm certainly not going to take a position on Tuesday that is inconsistent with what I've been saying, and what we've been saying, all the way along, that this jury should have been instructed on manslaughter, that was our position from the very beginning."

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

All that we know of Woodward suggests that she may resist the manslaughter compromise, even though it would leave Judge Zobel to decide on a sentence that could be three to five years imprisonment or less.Woodward has shown no willingness to compromise the purity of her declared innocence.

When the defence was asked what charges it would like the jury to consider before deliberations began last Tuesday, it 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 declaring an acquittal are considered infinitesimal, he could call 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 Woodward to take the same decision: agreeing to plead guilty to manslaughter.

However, Thomas Hoopes, a prominent Boston attorney said last night that Woodward could make a so-called "Alford plea". This would allow her to enter a guilty plea along with an explanation saying that she was only doing so because circumstances left her with no other option. He said this would be a way of saying: "I'm telling you I did it because you leave me with no choice. I'm not telling you I did it because I did do it."

But if she refuses to enter a guilty plea 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 left closed in the first trial? Would it offer an explanation of how Matthew may have died if 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 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 Woodward on the stand would occasionally leap on his brother from his full height.

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

Letters, page 14