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The Louise Woodward Trial

The distinction between murder and manslaughter

Legal and Social Meanings

A comment by Bernard Jackson

Judge Zobel's judgment may be read as recognising a gulf between the legal definition of the term "murder" (in the Commonwealth of Massachusetts) and its social meaning.

Confirming the direction he had given to the jury, he wrote:

Contrary to Defendant's contentions, the Court plainly told the jury to confine its inquiry to the events of February 4 and told the jury that the Commonwealth was obliged to prove that Defendant acted intentionally (albeit that she lacked intent to kill). It is settled law that under the definition of "malice" which the Commonwealth pursued here, a person can be guilty of second-degree murder even absent an intent to kill or even an intent to harm, so long as the Commonwealth proves: (a) an intentional act (b) which in circumstances known to the defendant (c) created what a reasonably prudent person would have known was (according to common experience) a plain and strong likelihood that death would result.

As applied to this case:

The test for malice (in the circumstances here) is whether, under the circumstances known to Defendant, a reasonable person would have known that her intentional act created a substantial risk of death to Matthew Eappen. This test has long been the rule in Massachusetts. As Chief Justice Oliver Wendell Holmes noted almost a century ago, "it is possible to commit murder without any actual intent to kill or to do grievous bodily harm," Commonwealth v. Chance, 174 Mass. 245, 252 (1899). The only intent the government need prove is the intent to perform the act, not any particular intent as to the act's consequences.

Clearly, this is an "objective" definition of malice. The end result is that a person can be convicted of murder when, on Judge Zobel's account, there is no "intent to harm", let alone to kill. What matters is how the reasonable person, rather than the defendant, would have construed the risk. The "objective" test here applied would undoubtedly in England lead to a manslaughter rather than a murder verdict. There can be no doubt that a murder conviction based on a Zobel direction would be quashed on appeal in England (Criminal Justice Act 1967 s.8; Moloney [1985] 1 All ER 1025, HL).

There is no reason, of course, why Massachusetts should follow English law. The result of the "objective" definition, however, is that a vast gulf emerges between the legal definition of "murder" and its social meaning. It is this, I would suggest, that made many people feel unhappy at attaching the label of "murderer", as well as the mandatory legal penalty, in the circumstances of this case.

The story which Judge Zobel adopted is the following:

Viewing the evidence broadly, as I am permitted to do, I believe that the circumstances in which Defendant acted were characterized by confusion, inexperience, frustration, immaturity and some anger, but not malice (in the legal sense) supporting a conviction for second degree murder. Frustrated by her inability to quiet the crying child, she was "a little rough with him," under circumstances where another, perhaps wiser, person would have sought to restrain the physical impulse. The roughness was sufficient to start (or re-start) a bleeding that escalated fatally.

Had the manslaughter verdict been available to the jurors, he argued, "at least one rational view of the evidence" might have led them to conclude:

(1) Matthew did indeed have a pre-existing, resolving (i.e., healing) blood clot; (2) Defendant did handle him "roughly"; (3) the handling (although perhaps not the roughness) was intentional; (4) the force was, under the circumstances, excessive, and therefore unjustified; (5) the handling did cause re-bleeding; and (6) the re-bleeding caused death.

This is too far from the typical images of murder which underlie the social meaning of the term. (For the theory of "narrative typifications" on which this view is based, see my Making Sense in Law, 1995; for details click here.)

Judge Zobel uses a different terminology. He justifies substituting a manslaughter verdict on the grounds that second degree murder represents a "miscarriage of justice". But what is a "miscarriage of justice"?

The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of guilt from murder to manslaughter (or even to battery).

... the test is not whether the evidence could support a verdict of second degree murder, but whether a lesser verdict more comports with justice, Commonwealth v. Ghee, 414 Mass. 313, 321 (1993).

Thus, second degree murder need not be excluded on the evidence (though in the present case, Judge Zobel later implied that it was), if manslaughter appeared to be the "more" just verdict.

Such a relativistic conception of a miscarriage of justice is adopted explicitly in the following passage:

After considering the law and the evidence of the whole case "broadly", Commonwealth v. Mahnke, 368 Mass. 662, 702n. (1975), to determine whether "there was any miscarriage of justice," ibid., the judge's duty requires: weighing "the fundamental fairness of the result," Commonwealth v. Ravida, 371 Mass. 243, 249 (1976); deciding whether a reduced verdict would be more consonant with justice, Commonwealth v. Ghee, supra, at 321; and determining whether justice "will be more nearly achieved" by a reduction, rather than by allowing the jury's verdict to stand, Commonwealth v. Baker, 346 Mass. 107, 119 (1963).

I suggest that manslaughter appeared "more just" than second degree murder (as defined in Massachusetts), less in terms of an evaluation of the evidence than because it accorded more with social perceptions of the dividing line between murder and manslaughter. Despite the wide legal definition, Louise Woodward, on the view of the facts adopted by Judge Zobel, was just too distant from the narrative typifications of a murderer.

If this analysis is correct, Judge Zobel has made a notable contribution to contemporary jurisprudence by incorporating (albeit tacitly) considerations of the relationship between legal and social meanings into the concept of a "miscarriage of justice".

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