Judge's Writings Offer Clues to Au Pair Decision

It seems, almost, as if the world is holding its breath, waiting for Judge Hiller Zobel to decide.

As early as today, the Massachusetts Superior Court judge will rule on the appropriateness of the verdict in the so-called au pair murder trial, which has sparked international interest and in some cases indignation.

Whatever he decides, this straight-shooting judge is expected to use the occasion to educate a rapt public about American jurisprudence. For 15 years, Judge Zobel has taken it upon himself to write about the subtleties, quirks, and complications of the law in magazines and newspapers, including this one.

He's given few clues as to what he might do in the case of British au pair Louise Woodward. But his writings - on issues such as the jury system, the role of the press, and what constitutes "reasonable doubt," serve as a road map to help understand the values that direct his thinking.

"A judge must simply listen to his conscience and try to hear its still, small voice over the angry clamor," Zobel wrote in this newspaper in 1988.

His work reveals a fluid, complex thinker with a sharp, legal wit. It also shows a man whose intellectual understanding of the law is tempered by a pragmatic compassion.

That attribute could be the one on which his decision pivots, as he weighs whether to change the jury's second-degree murder verdict. The teenage au pair has been sentenced to 15 years to life for shaking eight-month-old Matthew Eappen to death.

Manslaughter most foul

Most legal experts predict he will reduce the verdict to manslaughter, which doesn't carry a long mandatory sentence.

"It was a perfect trial for manslaughter, erroneously decided as Murder 2 because of [Zobel's] instructions [to the jury]," says Barbara Babcock of the Stanford University Law School in California.

In those instructions, Zobel (at the defense team's urging) told the jury to consider only first- or second-degree murder. Defense lawyers gambled that, given those choices, the jury would acquit Ms. Woodward rather than give her the heavy, mandatory sentence called for under those verdicts.

Zobel's writings display a strong distaste for mandatory-sentencing laws. In a 1988 column, the judge writes that he understands the public's frustration with "undue judicial leniency and inexplicable sentencing disparities." But he asserts that "mandatory sentences in fact hamper the pursuit of wrongdoers," impairing the court's ability to deal promptly with defendants, engage in plea bargaining, and exercise other types of judicial discretion.

Clearly, the Woodward verdict is the result of the defense's failed all-or-nothing gambit. One question now is whether Zobel's frustration with the inflexibilities of mandatory sentencing goes deep enough for him to change the outcome of the case.

The defense's failure to persuade the jury that "reasonable doubt" existed may also be uppermost in Zobel's thinking. In another 1988 column, he writes that reasonable doubt is well established in the Constitution but is not clearly defined. In fact, he calls it "self-defining." " 'Proof beyond a reasonable doubt' thus means whatever quantum of evidence happens to satisfy a particular jury," he wrote.

He also noted his concern that lowering the standard for reasonable doubt could undermine the overall legal system. "Our society pretty much agrees that convicting a person of a crime is and should be a serious matter," he wrote. "This does not mean favoring the defendant. It means that a belief that easing the prosecution's task threatens the liberty of everyone."

Jury verdicts are considered almost sacred in Massachusetts courts. Zobel has vacated three during his career, but he has also made clear his respect for the sanctity of jury decisions. In 1985 he wrote, "In almost every conceivable case turning on whether a witness is lying, it seems to me preferable that 12 people, not just one, should decide."

Zobel's writings also display a keen awareness of the press and of public reaction - key elements in the Woodward case.

In a 1996 column dealing with the court-media relationship, he writes: "News people think (often with reason) that, as a class, the judiciary tends toward aloofness, arrogance, and impatience. Judges regard reporters as ignorant dirt diggers...." Both, he implies, are right to some degree. But he says he'd rather work with the media to explain the complexities of a trial, rather than brush them off as a nuisance.

Role of public opinion

The press, after all, plays a pivotal role in informing the public about the legal system. "Sensitivity to out of court reactions becomes necessary ... when the judge deals with two additional sentencing factors: deterrence of other offenders, and community attitudes toward the particular offense," he wrote in 1983.

Whatever sentence is handed down must send the message that "antisocial behavior will entail certain consequences," he goes on. "While seeking a fair sentence..., the judge must in a sense put himself into the public's place (or, more accurately, bring the public onto the bench next to him)."

In the Woodward case, Zobel's writings indicate the jurist must be listening for the "still, small voice" of his conscience, even as he tries to gauge international reaction. As he says at the end of the 1983 column: "Sentencing is not a game."