DATE: Saturday, November 15, 1997           TAG: 9711150012

SECTION: LOCAL                   PAGE: B9   EDITION: FINAL 

TYPE: Opinion 

SOURCE: Kerry Dougherty 

                                            LENGTH:   73 lines

HILLER ZOBEL: HE'S UNPREDICTABLE, HE'S OFTEN WRONG AND HE'S ON THE BENCH

Massachusetts Superior Court Judge Hiller Zobel has just knocked off Lance Ito for the title of worst judge in America.

What in the world - if anything - is going on in this man's mind?

For starters, let's try to ignore the fact that Zobel chose to issue his latest bad ruling via the Internet rather than from the bench like a normal judge. Maybe his robe was at the cleaners.

That was a small atrocity compared to others. By the time the jury in his courtroom convicted au pair Louise Woodward of murder earlier this month it was clear the case would be challenged, based on one of Zobel's many missteps.

Let's start with a sampling of his early errors. If Judge Zobel believed prosecutors had a weak case against Woodward he had ample opportunity to free her before the jury rendered its verdict. Defense lawyers moved to strike the prosecution's evidence after the commonwealth rested its case. If the evidence didn't support a first or second degree murder conviction, Zobel should have ended the trial on the spot. Judges routinely do so. That's their job.

Later, Zobel made another colossal blunder by omitting the lesser charge of manslaughter when giving instructions to the jury. Instead, he went along with defense lawyer Barry Scheck's view of the courtroom as a judicial casino - an all-or-nothing place where a defendant's future rests on the come line. That's not what judges are supposed to do.

Zobel's biggest bloopers began after the jury startled all the legal experts by rendering a common-sense verdict: murder. These 12 ordinary people understood that the evidence clearly showed the baby was fine on the morning of Feb. 4, but by afternoon - after being alone with Woodward - was in a coma.

Zobel decided to reduce the jury's conviction to manslaughter, just a few days after deciding not to give the jurors the option to consider that charge. In effect, the judge overturned himself on appeal.

You have to wonder why Zobel tampered with this jury verdict. It's something he's done twice before in murder cases and both times it has come back to bite him. Once he dismissed a murder conviction and ordered a new trial. The defendant was re-convicted by a second jury. Another time he reversed a guilty verdict and acquitted the man outright. The guy later killed someone else. Gee, thanks, your honor.

Adding insult to injury after overturning the Woodward verdict, Zobel decided to let the killer off with time served - 279 days. In Virginia you'd serve longer than that for writing bad checks. Did the fact that she had killed a baby slip his mind while he was logging onto the Internet?

There's one consolation with Zobel's turning Louise Woodward loose: It's unlikely she'll kill any more American kids. No sane person would allow an infant within 15 feet of her. And she's returning to her English village, Banger on Tyne.

I'm not worried that Judge Zobel's bizarre behavior will cause copycat judges here to start tossing out jury verdicts in criminal trials. It almost never happens, and almost never should.

But I am concerned that we'll see increasingly erratic behavior by judges who are more concerned with TV ratings than justice. With the prevalence of Court TV and televised trials, the public is treated to snippets of intricate criminal proceedings. A public revolt can ensue when viewers disagree with the verdict, even though only the jury sat through every tedious minute of the trial.

In his verbose Internet opinion, Zobel denied that he was swayed by public opinion. Really? Surely he saw the instant television polls showing that 75 percent of Americans thought the jury was wrong. If not, he could hear protesters chanting outside his window.

Most of all I'm bothered by what turned out to be nothing more than a mock trial - thanks to Zobel. A jury was carefully selected, the members dutifully listened to the evidence, they thoughtfully deliberated, they arrived at a verdict. The judge thanked them, sent them on their way and then promptly threw out their decision.

That's not the American way. And letting the killer of a helpless baby go free after serving just nine months in jail isn't justice either.

Move over, Judge Ito. MEMO: Ms. Dougherty is an editorial writer for The Virginian-Pilot.

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