As I'm writing this, a jury in Cambridge, Massachusetts has finished its second day of deliberation without reaching a verdict in the murder case of a 19 year old British nanny, Louis Woodward. As you have probably seen in the news, this young woman has been accused of killing an infant child that was  in her care by allegedly violently shaking him and then slamming him against a hard surface. For some crazy reason, the prosecution took the position that it was the floor she slammed him against although no one has any idea what object, if any, the child's head struck.

What first caught my attention about the case, however, was a story that appeared on the AP wire last weekend that discussed the difficult task the prosecutors would have in cross examining the defendant. Her testimony on direct examination had come to a close on Friday afternoon thereby giving the prosecution the weekend to prepare. This break also  brought the experts commentators out of the woodwork.

The gist of the news story was that the attorney representing the State (or the "Commonwealth") as they call it, would have to be very careful in not being too "tough" on the defendant. If that were indeed true,  it seemed to me, the prosecution was in trouble. Big trouble. When was the last time that you heard the media opine that a prosecutor shouldn't be too aggressive with a defendant? Not a witness, not a victim, but the person charged with a crime. In this case, charged with murder. If she had performed so well on the stand that those objective reviewers of her testimony thought she came across as meek or helpless, the prosecution had its work cut out for it in simply winning the case.

But things became really interesting when the defense team went for the jugular as testimony came to a close. In a truly gutsy move, the defense announced to the judge that they did not wish for the jury to consider lesser charges. The D.A.'s office, as stated above, had charged the defendant with murder. That is, simply, the taking of the life of another with the intent to do so. An obvious lesser charge in this case would be that of manslaughter. That is, the reckless killing of another. It would seem to be a very possible verdict. The jury could agree that the nanny shook the baby too hard, but might choose to find that she didn't intend to take the baby's life. Instead, they could find that she simply acted recklessly in causing the death of a child which is in itself a crime albeit a lesser one than murder.

This decision would had far reaching ramifications. Since the jury would only be asked if they believed beyond a reasonable doubt that the defendant committed the offense of murder, they would have to acquit her if even if they believed she committed manslaughter.  It's a choice between life imprisonment and letting her go home.

The prosecution wasn't feeling to great about their case, it would seem, because they asked the court to submit the manslaughter charge even though the defense did not want it. The judge refused. It would be an all or nothing case. There would be no middle ground for the jury to consider.

If the prosecution loses, they will come under criticism for "overcharging their case". That is, accusing an individual of a crime that they could not prove under the facts they were given. If the evidence makes it clear that the prosecution was stretching the facts in order to charge a greater offense that warranted, they lose credibility. And when the State loses credibility, it often loses the whole case.

It's all or nothing in Cambridge. We'll see how it turns out. 

Barry Green is the District Attorney for the 271st Judicial District.