A decision had to be made. Schick’s hands were tied, essentially. Either way, some of the culpability—if not all—would fall on Odell’s shoulders. It didn’t matter that Mabel was there. There were four babies involved. The repetitious nature of the deaths alone was enough to convince a jury Odell was somehow involved. Bad childhood. Prostitution. Raped by her father. Abused by her mom. None of it gave Odell a license to kill or neglect her children. A bad childhood, in other words, could not have made her do it, simply because she had given birth to so many children that ultimately lived.
“Okay,” Schick continued, “let’s say I call Martin to the stand and establish that she had been abused, had a bad childhood—emotionally, physically, and sexually—and that the first child was quite possibly her own father’s child. But then a long number of years go by and she has living, healthy children and she’s leading a fairly normal life. How many more can you keep having and killing because of a bad childhood?”
Still, Schick wasn’t going to deny there was a possibility that a strong defense could be built around Odell’s alleged abusive upbringing. She could contend, Schick said, that during those pregnancies in which the children had died, she was all alone, which was what she had told the police in her statements, and it was an impossible position for her to be in. Schick’s challenge would be to convince the jury to put themselves in a similar position and have them ask themselves, What would I do? It was a gamble, of course, but at this stage appeared to be one of Odell’s only chances at either escaping life behind bars or getting off on a lesser charge. The argument would be: Odell couldn’t make decisions in a proper manner based on the abuse she suffered. Therefore, it wasn’t murder; it was manslaughter or criminal negligence.
Convincing Odell it was her best defense, though, was what stood in Schick’s way right up until the first day testimony was set to begin. He and Tim Havas were still teetering on advising her not to testify, even though Odell was now absolutely adamant about telling her story to jurors.
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“I’ve lived with the shame, I’ve lived with the fear,” Odell recalled later, reflecting on what she was thinking during that crucial time before trial when she was still trying to decide what to do, “the open anger, the hostility.”
It was becoming all too much. But she insisted she had felt like a “doormat” and the “shit on the bottom of somebody’s feet” long enough. It was time to take a stand. “I can’t do this to my children any longer.”
Odell said Schick believed she had “suffered every kind of abuse possible,” but that it didn’t seem to have anything to do with the case he was preparing. She felt he didn’t care, and that he’d already made up his mind regarding the type of defense he wanted to present.
Heading into opening arguments, Odell said thoughts of Martin’s possible testimony, Sauerstein’s testimony, coupled with her own, fed her strength. Together, she was convinced, they could persuade a jury that, because she had been abused so often, for so many years, she’d had nothing to do with the deaths of the children. In effect, the deaths weren’t her fault.
“Now that Martin had agreed to testify,” Odell recalled, “all that we have to do is get up on the stand and tell the truth. Word it any way you want to word it, the truth is in the eyes of the beholder. They (the police and Lungen) see their truth one way; I see it another. I mean, you can take moments out of anybody’s life and concoct them to make anyone appear as a mass murderer if that’s what you want to do.”
Huh?
But Lungen and his team weren’t suggesting Odell was a mass murderer; they were content with the fact that they could prove beyond a reasonable doubt she had killed three of her children. Odell herself had signed a statement indicating as much. Now, it seemed, she wanted to change her mind and blame the police and Lungen for going after her.
Odell believed Scileppi, Streever, and Lane, along with Lungen, were out to get her from day one. She felt they had zeroed in on her and forced the facts to juxtapose with a notion they dreamed up, putting her at the center of some evil plot to kill her own children. She felt strongly that because Lungen couldn’t prosecute her in 1989 for the death of Baby Doe, he was fixated on putting her away now. Yet, that being said, she wasn’t prepared to call them “liars.”
“To be really fair, I am not going to accuse them of lying. I’m accusing them of omission. They led people to believe one thing by leaving out a plethora of others. Not one of them—ever—said that I had asked for a lawyer. That goes for all of them.”
Even Stephan Schick had a hard time believing Odell had never asked for a lawyer. If one truly believed cops didn’t pressure suspects and fool them into thinking they didn’t need to speak to a lawyer, Schick said it was an extremely naive position.
Odell maintained that all she had to do was get up on the witness stand and tell the truth. It would save her. But Schick, she said, was “telling [her] that the DA was going to try to twist everything….
“Schick is trying to make me feel,” Odell recalled, “like I have to have an answer for everything—and I don’t have an answer for everything.”
Schick had no trouble admitting that he, in fact, did tell Odell she had to have an answer ready for any question Lungen might ask. It was his job to extend that virtue of courtroom experience to her. After all, Schick had been inside courtrooms for nearly three decades. One of his worries, where Lungen’s questioning was concerned, involved the idea that Odell never sought prenatal care while she was pregnant with the three dead babies. Lungen undoubtedly would bring it up on cross-examination. She had to be ready.
“If I did that,” Odell said, meaning going out and getting prenatal care like she had with her living children, “I would have had to leave my children with my mother. And she was definitely in control of everyone and everything at that point in time. So I weighed out leaving my children with her for a short amount of time and going to do something I know she didn’t want me to do, and coming back and maybe finding one of them gone. There was a point in time where I even went to work and I came home from work and I said to my mother, ‘Where are the kids?’ and she said, ‘They should be outside playing.’ And they were nowhere around.”
Some would later say Odell had a way of explaining away everything that had gone wrong in her life as being someone else’s fault, mainly Mabel’s. It seemed she had a hard time taking responsibility for anything.
“The problem is,” Schick commented, “if you look at her and what she says, it’s always everybody else. That’s the problem. I mean, I was never accused of killing four people! I couldn’t get away from the fact, viewing this thing from a defense standpoint, that she had given birth to all these babies. She was there during the births.”
Indeed, Odell had an answer for everything—except when it came to certain parts of her obviously troubled life with her mom.
“There are going to be blanks in [my story],” Odell intimated. “Pieces of time that I can’t fill in. No matter how hard I try. My personal opinion is that the things that were going on in my life then, the things that were being done to me, the things that I was trying to do to protect my girls, were so horrific, in my own mind I think I shut them…there was a point in time when I just shut them out to save my own sanity.”
The abuse Odell suffered—if, in fact, she was abused—was not, in Schick’s view, enough to save her from harsh questioning by Lungen, not to mention all the evidence against her. It didn’t answer the question of guilt, which was the only initiative weighing on Schick’s mind as the first day of opening arguments approached. Would she or wouldn’t she testify? That was the question the defense faced.
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Stephan Schick and Tim Havas sat in Schick’s office inside Legal Aid during the first week of December and discussed how they were going to proceed. Time and again, weighing how Odell stood up to pressure during the dozens of times they had cross-examined her, they came to the same conclusion: if she decided she wanted to testify, it was
in her best interest, they were going to advise her, not to.
“Another awful decision we were forced to make,” Schick said, “regarded manslaughter. If the judge would give her manslaughter as a ‘lesser included,’ and the jury would find manslaughter, then the charges would have to be dismissed because the statute of limitations had run [out].”
The only way around this option was for Odell to waive the statute of limitations on a possible manslaughter charge. But Odell could still be found guilty of three counts of manslaughter in the second degree, which, in turn, could amount to a life sentence.
Schick said the case, from the get-go, was a tangled web of legalities, many of which Odell (nor anyone in her family) ever understood fully—a dynamic that caused some friction between them. But Schick remained steadfast in doing his job to the best of his ability, and part of it came down to Odell’s decision to testify. It was up to her, he said. No one else.
“We were, most of the time, leading up to the trial,” Schick recalled, “as she says, under the opinion that we would have to put her on the stand. We thought her half brother would have better testimony than he ended up having. We thought there might have been another baby that was buried in the backyard, but it didn’t turn out to be his actual testimony. We thought he might be helpful with some other testimony—I think he’s the nicest guy in the world and he was absolutely truthful—but, unfortunately, because of that, he was limited to the amount of testimony he could give.”
It was an impossible case, Schick insisted. If the judge had ruled in Lungen’s favor during the Molineaux hearing, which would have allowed evidence of Baby Doe into trial, then deciding to put her on the stand would have been an easier decision because, at that point, “We wouldn’t have anything to lose.”
Leading right up to the first day of testimony and opening arguments, Schick and Havas found themselves dealing with the same problem: Odell not being able to answer certain questions that, Schick said, “could not be answered by her in any way that made any sense logically or rationally.”
One of the questions Schick had grilled Odell about, on numerous occasions under mock cross-examination, was “Okay, you had the first baby in ’72; now it’s ’82, you have another baby; now it’s ’83. At that point, you know that your mother is killing these babies. What precaution did you take for the next baby in ’85?”
There was, really, no answer Odell could come up with.
“It’s hard to come up with an excuse,” Schick continued, “as to why you would get no prenatal care if you know your mother, if you suspect your mother, might be doing something to ensure these babies die shortly after birth. Would you not go to a doctor or someone else to lay a framework or groundwork to make sure it wouldn’t happen again?”
If Odell had done that, other people would have known what Mabel did. There would be a record, a trail of evidence, so to speak.
And then there was another problem, which Lungen was sure to bring up—that Odell had received prenatal care for her eight living children and had gone to the hospital to deliver them. How does one explain that logically? And then there was the fact that Mabel died in 1995. Why didn’t Odell run to the police then and explain everything?
Odell said later she was scared Mabel would haunt her after her death and do something to her children. That would be a fine argument for an insanity defense, but Lungen would rip it apart.
“It got to a point,” Schick said, “where I believed that on cross-examination we would have ended up worse than without putting her on.”
Furthermore, the report Schick had gotten back from the psychiatrist he had hired wasn’t supportive.
“After he gave me a report that wasn’t helpful, I went back and told him, ‘Look, here’s some more facts, go back and see her again!’”
In the end, though, there was nothing the psychiatrist could find that would have helped during trial.
CHAPTER 26
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STEVE LUNGEN HAD come a long way in thirty years from his days on the battlefields of Vietnam and his ambivalence regarding public speaking. He had given hundreds of opening statements in his nearly three decades of trial lawyering. He felt comfortable standing, talking to a jury, explaining how he was going to prove his case. It wasn’t about making false promises and telling a jury things it wanted to hear; it came down to presenting facts in an easy-to-understand language a jury could wrap its arms around and comprehend without having to refer to a law book.
If any criticism concerning opening statements could be placed on Lungen, some might say it was a penchant he had for overstating his case and perhaps carrying on a bit too long. But that was Lungen’s passion shining through: his nature. He had done his homework, studied the case every possible way and put in the time to devise an opening that hopefully would encourage jurors to pay attention to the case he was going to present.
Before he could start, however, the judge spoke briefly to the jury, outlining how the day would proceed. One juror had to be replaced with an alternate due to a personal matter, but, for the most part, it was time to ring the bell, butt gloves, and get it on.
After finishing his opening remarks, Judge Frank J. LaBuda underscored the importance of jurors to listen to the lawyers’ arguments with a bit of cynicism. “Please bear in mind that when the attorneys speak to you,” LaBuda said, “…by way of submissions, what the attorneys say to you is not evidence. The evidence will come from witnesses that come into this courtroom and are sworn and give testimony….”
With that, LaBuda explained the varying differences between evidence and testimony, and then, kindly, handed the torch to Lungen.
“Good morning, ladies and gentlemen,” Lungen began. “This trial will be about a horrible story concerning the death of innocence.”
There it was already: the death of innocence. It would become one of many references Lungen would make to the victims.
“This trial,” he continued, “will be about infant babies that were born alive and that are entitled to the full protection of our laws. Infants, even minutes old,” and he lowered his voice a bit to emphasize what he believed to be the true horror of Odell’s crimes, “have the same constitutional right as adults, and they have the right,” and now he raised his voice, “to live.”
Lungen next explained the definition of infanticide, and then launched into a discussion regarding Odell’s motive. “Each child,” he said, pointing at Odell, “in the defendant’s mind, she deemed to be illegitimate, they were murdered.”
Primarily, Odell sat looking down at the table in front of her, with Schick and Havas by her side, comforting her at times. She looked horrible; the weight of the charges and the trial having had an obvious impact on her physical appearance: dark bags under her eyes, her lip quivering as if she were forever on the verge of crying.
“Most of the time, I was crying,” Odell recalled. “When I didn’t cry, when I listened to the things Lungen was saying, I was thinking to myself, ‘My God, this man is taking pieces out of my life, one at a time…and he’s putting them together and stringing them into a commentary he wants.’”
While Lungen continued, Odell said, she tried to drift away through prayer: I hope to God that you straighten out this man’s tongue. Hail Mary…Hail Mary…straighten out his tongue.
It became a mantra she would recite to herself to try to take her mind off the situation.
Like any seasoned prosecutor, Lungen unfolded his case to the jury, piece by piece, explaining exactly what he was going to prove: “How the babies were discovered; what condition they were in; what the defendant initially had to say about those babies; what the defendant did say about the babies; what the defendant did not say; what [she] did not do; how [she] attempted to mislead, falsify, to minimize her conduct; and, ultimately, how and why she is guilty….”
It was a barrage of accusations preceding a chronological dissertation of the events leading up to Odell’s arrest: the discovery of the mummified and decomposed
remains in Arizona, Detective Diane Thomas and Bruce Weddle’s initial investigation, and the Pima, Arizona, medical examiner’s early assessment of the bodies.
He warned jurors about the graphic nature of the photographs they were going to see: “You should and you must see that…it’s the evidence of what this case is about, and I can’t clean it up,” he argued, pumping his fist angrily. “You can’t erase certain things and not erase other things.”
Again he was trying to keep the focus on what was at stake: infants had been murdered, and it didn’t matter what type of childhood or who else was to blame. Odell had given birth to the children and allowed them to die.
“It is what it is….”
Over the next ten minutes or so, Lungen continued with what was, at times, a frightful version of the events leading up to Odell’s arrest. On several occasions, he spoke of “full-term” babies, and reminded the jury that the babies weren’t stillborn or born prematurely; they were born healthy. He was going to prove it, he promised.
Then he worked his way into Odell’s background, as she had explained it to Diane Thomas and Bruce Weddle. Here, he zeroed his argument in on the fact that Odell had given birth to eight “healthy” children, all born in hospitals, and three dead children, all born at home.
From there, he talked about the interviews Odell had agreed to take part in with police, mentioning how she claimed initially to have no idea whose children they were, but under pressure—and more questioning—admitted they were hers.
This part of Lungen’s argument carried on, perhaps, for too long, and became quite technical in its step-by-step peeling back of the layers of each interview. Then again, it was a focal point that his case, when it came down to it, hinged on Odell’s admission to police. If the jury bought it, she was guilty. If not, she would walk.
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