DEFENSE lawyers say they will seek a new trial this week in the case of Christian Scientists Ginger and David Twitchell. The move follows the publication on Friday of excerpts of letter to the chief justice of the Superior Court criticizing the way the trial judge handled the case. The letter was written by the forewoman of the jury that convicted the couple of manslaughter on July 4. The Monitor has obtained a copy of the letter.
The Twitchells were convicted in the 1986 death of their 2-1/2-year-old son, Robyn, who died of what was later diagnosed as a bowel obstruction caused by a birth defect. The couple relied on treatment by Christian Science prayer instead of medicine during the child's five-day illness.
In her four-page letter to Chief Justice Robert Steadman, the forewoman, Jolyne D'Ambrosio, criticized what she called Judge Sandra Hamlin's ``continuous allowance of the prosecutor's humiliation of Christian Scientist witnesses and their beliefs.''
Ms. D'Ambrosio also wrote that ``at different points throughout the trial, I had the uneasy feeling that the judge was biased. I distinctly remember a point at which she sustained the prosecution's objection to a line of questioning by the defense, and moments later overruled the defense's objection to the same line of questioning by the prosecutor to the same witness. She allowed prosecution doctors to ramble on and on, but authoritatively instructed Christian Scientist witnesses to respond with a simple yes or no to questions from the prosecutor,'' D'Ambrosio wrote. ``Her facial expressions (she actually rolled her eyes on more than one occasion) also led me to believe she was being unfair.''
D'Ambrosio also protested the judge's interpretation of state law in the case. Judge Hamlin instructed the jury that Massachusetts law requires parents to provide ``proper physical care,'' which she said means that parents must resort to medical treatment if a child is ``seriously ill.'' But D'Ambrosio cited a 1975 ruling by the state attorney general that said a 1971 Massachusetts child-endangerment law precludes criminal prosecution of parents relying on spiritual healing. The law contains a provision that allows parents to rely on spiritual healing for children in accord with the tenets of a ``recognized church.''
``It seems to me, from a reading of the statute itself, that remedial treatment by spiritual means alone constitutes proper physical care and, since there is no restriction written into the law, I don't see how one can be reasonably interpreted,'' D'Ambrosio wrote. ``By law the Twitchells were granted the right to rely on spiritual healing, but Judge Hamlin didn't bother to tell the jury about that fact.''
The forewoman also wrote that the judge did not tell the jury about a defense based on ``honest and reasonable mistake.'' This, she said, would have required the jury to determine whether the Twitchells' belief in healing by prayer was reasonable. She noted that the judge refused to admit ``evidence regarding the efficacy of spiritual treatment and the recognition accorded it by state and federal tax laws and health insurance companies,'' a fact she learned after the trial.
``I believe the Twitchells are humble, loving, and law abiding parents who tried to do the right thing according to their beliefs and the law...,'' D'Ambrosio wrote, underlining ``law abiding'' as well as ``and the law.''
``The one and only thing I learned from this trial,'' she continued, ``is that the criminal justice system doesn't work, or at least it doesn't work fairly.''
The letter is dated July 27. The Boston Herald published excerpts on Friday. ``I've never in my life seen anything like this happen before,'' said defense co-counsel Stephen Lyons. He said other jurors had contacted his office with ``identical'' sentiments.
A spokesman for Suffolk County District Attorney Newman Flanagan's office said the district attorney had no comment on the letter. Steadman is on vacation and could not be reached for comment. An appeal of the Twitchells' conviction is pending.