Judge Zobel and the Louise Woodward verdict - 14 November 1997

You'll understand, I think, why it's so much easier for me to talk now about the case of Louise Woodward than it would have been during the trial, or after the jury had handed down its verdict.

I had a letter or two protesting about my silence in this matter but they made up in hysteria what they lacked in numbers. The main burden of several protests, and of all the more indignant ones, was what was generally called the barbarity of the American, of the whole American, penal system. This certainly was the instant response of many English people.

Some of them had, no doubt, thought long and hard about the testimony of the two camps and concluded, when the verdict came, that to convict Louise Woodward with malicious intent to kill the baby entailed monstrously hard punishment. But others, one man who wrote three times, were simply victims of instant chauvinism of a primitive kind I thought had died in the 1920s. How dare an American court charge a 19-year-old English girl with the grotesque crime of killing a baby? Of course she's innocent.

Well first, whichever way the verdict had gone, I should have wanted to say, what do you mean by the American penal system? There is such a thing but it's not involved much of the time in the life of American citizens. Do you remember one of the most famous sentences in English literature – they order these things better in France.

Well, I have to say once again what I've been saying at discreet intervals for over 50 years, when people from another land, even I regret to say, quite often close friends, when they say that's the law in England, how do they handle it in America? The only possible response, even though it can sound rude at the time, is what part of America, which of the 50 states are you talking about?

State laws, not national, not federal, are what Americans live by most of the time. It's the laws of a particular state that are binding on their citizens and residents and anybody caught for an offence on the fly. There are no national grounds for divorce. Each state has its own. It has its own educational system, banking laws, transportation laws, alcohol licensing laws.

The far western state of Oregon is the only state so far with a law legalising assisted suicide. One state, Maryland, say, has very stringent gun control laws. In Nevada they're very loose. And way down yonder in New Orleans offers a striking individuality.

The state of Louisiana once covered one-third of the whole of North America and was mapped, owned, occupied by, if you like, the French. When Napoleon, who had been atrociously beaten by the natives of Haiti, in a rehearsal for what was to be an invasion of the United States, when he sold Louisiana to the United States for four cents an acre, many French customs and practices were abandoned, but many practices of law in the Napoleonic Code stayed firm in the administration of justice and they're there today. I once covered a trial in Louisiana and it was a revelation.

California, along with Arizona, Nevada, New Mexico, the south-western states that were first conquered by Spain, these states were for a long time the only ones to enforce a Spanish legacy, a community property law, whereby a divorce decree required the husband to divide his whole property and hand over half to his parting wife. He does this each time, so a big movie star, married and divorced three times in California, will wind up with one eighth of his worldly goods.

Each state has its own property and income tax laws. Every American, wherever he lives, in Connecticut or Timbuktu, has to pay the national, the federal income tax. However, those of us who have the pleasure or misfortune of living in New York City, pay three separate income taxes – federal, New York State and a city income tax.

So the first, and most important, thing to bear in mind in considering the Woodward case, is the simple, large fact that no federal penal statute was involved. She was being tried by the Massachusetts criminal code.

Yes, every state has its own criminal code. Massachusetts, as you know, was one of the first colonies to rebel. The port whose waters were said once to have turned brown from the brewing of tea leaves, was the port of Boston and when, after the Revolution, the colonies formed separate states, some did not christen themselves states. Virginia was the Old Dominion. Massachusetts and Pennsylvania, to this day, are Commonwealths, a word you've perhaps heard more of in the past few weeks than ever before.

The criminal code of Massachusetts is therefore very old, very venerable and has had some legal giants interpreting it. Justice Holmes, Justice Brandeis will, I hope, spring to mind. And, as with every other state, the Massachusetts code has its own peculiar provisions, most original of which I ought to say at once, provided a blessed break for Louise Woodward, a statute which allows the judge in a criminal trial to overturn the jury's verdict. I believe there's only one other state that allows this, what Judge Zobel used to achieve what he called a compassionate conclusion.

It was noticeable in the press comment from around the country that most Americans were amazed, delighted, or appalled by that statute. It was the first time they'd heard of it. I'm talking, of course, first about the power of the judge to moderate the verdict and take it down from first to a second-degree murder to involuntary manslaughter.

Incidentally, before the judge re-sentenced, friends in Britain wrote to wonder why, as they put it, she was not allowed to face the lesser charge of manslaughter. Well it was Louise Woodward and her lawyers who asked not to offer the jury a manslaughter charge, over the strenuous objections of the prosecution, and the judge let them have it. They took the very daring risk of offering the ultimate murder charge or acquittal. They gambled that no jury would dream of convicting her for murder, with acquittal as the only alternative, they would take it.

I ought to add too, that the Massachusetts record shows that this privilege of the judge in a criminal court has been exercised very rarely indeed. One expert guessed about once in 99 trials. So Judge Zobel showed courage verging on audacity to do it in this case.

If the Appeals Court, the Massachusetts Appeals Court, refuses to allow his re-sentencing, Judge Zobel will suffer irreparable damage to his reputation, which is enviable. He's a veteran, a scholarly judge and the best word for the defendant and her family is, judging from the rare precedents, that the Commonwealth, the prosecution, will have a very difficult time getting a reversal.

Most informed lawyers think, too, that the defence will have a next to impossible task to have the manslaughter verdict withdrawn, in the assertion of her innocence. The legal consensus is that the judge went as far as he dare, perhaps farther, in reducing the sentence. But his denial of a passport or of any thought of her leaving Massachusetts was his reminder, Miss Woodward is still a convicted felon, that a baby is dead and that it was in her care.

Since the re-sentencing, you've no doubt heard about the publication of an astonishing document, a public letter signed by 49 doctors, expert pediatricians from around the country, condemning the defence's medical view and saying the medical evidence overwhelmingly supported the prosecution's case that the damage done to the baby was a classical case of violent shaking impact and that it would be just about impossible for a baby to suffer a severe brain injury and then function normally for three weeks. Well it didn't take 49 doctors to make the jury share that belief, but the Appeals Court can not, ought not, to take this massive protest into account, only the testimony given before the jury.

It has been said, and rightly, that no case has so mesmerised the American public since the trials of OJ Simpson. But the general interest goes beyond that of a melodramatic and exotic murder case. The Woodward case reaches into the anxieties and the daily life of most families. You could say, as a social fact, that the case is one of the unanticipated consequences of the feminist movement.

The liberation of young women from the age-long expectation that every girl's life is to look around for a husband in her late teens, to be married in her 20s, to have children and stay home to care for them until they're grown to adulthood and fly the coop.

Put another way, the Woodward case is the most dramatic of many reminders in our lives, that when more than half the young women in the Western world go out to work, that most of them want children and have them, there is a new universal anxiety at large, the secret fear, as one woman commentator put it, in the back of every mother's head, that the people she's left her kids with are likely to hurt them.

One good thing that has come out of this ill wind, is the sudden realisation among working parents, nanny and au pair agencies and surely governments, is that the au pair and nanny businesses are too casually organised. Already in this country there's been a move for a Congressional enquiry into the running of the au pair programme, which is a federal concern, being run by the United States Information Agency.

Let us hope, when this happens and the professional standards are raised and conditions of work better defined, that the investigators and the governments will not overlook the root problem – how to reconcile the au pair's vision of a cultural adventure with the employers' wish for inexpensive child care.

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