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Experts Duel in Nanny Trial

Guilt or acquittal of Louise Woodward likely to hinge on deciphering complex and conflicting medical opinions.

By Scott BaldaufStaff writer of The Christian Science Monitor / October 29, 1997



CAMBRIDGE, MASS.

When the jurors of the Louise Woodward murder trial consider the evidence today, they will have more than tearful testimony to help them make their decision. They will have X-ray, anatomical models, CAT scans, and expert testimony from some of the most respected figures in medicine today.

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Miss Woodward is charged with first-degree murder for allegedly violently shaking to death an eight-month-old baby under her care. Her lawyers say the baby died from accidental injuries that had gone undiagnosed for weeks.

For the mere drama alone, the so-called Nanny Murder trial has gained international attention, particularly from Woodward's homeland, Britain. But legal observers say the Woodward case offers a rare peek into the unsettled world of high-tech medicine, where even the experts disagree about some of the most basic assumptions. In this trial, for example, the standard autopsy report has given rise to many conflicting theories over how and when the injuries occurred.

This leaves jurors in the unenviable position of deciding which expert, and which scientific theory, to believe.

"The effectiveness of experts really depends on the lawyer. If both sides are equally good, then jurors are in a position to reach a decision. If neither side is clear, then jurors are likely to ignore them both," says David McCord, a law professor at Drake University in Des Moines, Iowa.

In the battle of the experts, prosecutors generally have a built-in advantage. They can develop their cases with the testimony of state medical examiners, hospital lab technicians, policemen and the like. But defendants must find and pay each eminent doctor, college professor, and surgeon who testifies on their behalf.

In the Woodward trial, experts received anywhere from $300 to $900 an hour, a sum paid for by EF Au Pair, the private agency that placed Woodward with her host family. While prosecutors were quick to point out this expert-for-hire arrangement, most jurors tend to make up their minds on the credibility of the information itself, not on how much the expert was paid.

Still, the quality of the expert hired can sway a jury. "In the cases in which the defense is well-funded, it's difficult to convict," says Richard Moran, a criminologist at Mt. Holyoke College in South Hadley, Mass., who has been an expert witness himself in death penalty cases.

Jurors don't always simply discard the testimony of dueling experts, Mr. Moran argues. Confusion can help the defense. "If the jury is left befuddled, that's got to be reasonable doubt," he says.

If the defense experts in the Woodward trial have been effective, much of the credit goes to Barry Scheck. Best known for his work on the O.J. SImpson defense team, Mr. Scheck, a New York law professor may be the nation's preeminent techno-lawyer. His specialty is turning complex medical jargon into standard English. His goal: to establish doubt in the minds of jurors.

"Scheck is dynamite on forensics," says Sarah Jennings Hunt, a criminal defense lawyer in Cambridge, Mass., who describes herself as part of the cheering section for the defense. "He has this incredible memory for details."

In the courtroom, Scheck uses gestures to help translate anatomical jargon into identifiable body parts. "Doctor, can you explain why the change in intercranial pressure," Scheck asks, raising and lowering his hand rapidly to demonstrate, "would have an effect on the creation of these hemorrhages?"

Even past clients have been watching the trial on Court TV to see Scheck in action. "Barry has a style that gets you interested immediately," said O.J. Simpson, during a call to Court TV.

Given the complexity of their fields, expert witnesses can sometimes be their own worst enemies in court. Such was the case with forensic pathologist Michael Baden, who is being paid $300 an hour to testify for the defense. In 1989, Dr. Baden testified in this same Cambridge courtroom that children cannot die after a fall of one to three feet. Today, Prosecutor Martha Coakley noted, Dr. Baden says they could.

"So doctor, have you changed your mind on this subject in the last 10 years," she asked.

"Yes, slightly," responded Baden.

But while Baden stumbled under cross-examination, he never dropped his central assertion that the victim, Matthew Eappen, could not have died in the manner that the prosecution described.

The defense feels its case is so strong that it persuaded the judge to restrict the jury from considering a lesser charge of manslaughter. If jurors find that the prosecution has not proved her guilty of first- or second-degree murder, they must acquit.

A decision in the Woodward case is expected by the end of the week.