Schick sat, looking through his notes, conversing quietly with Havas, as Odell listened attentively. For Odell, Thomas’s testimony was just one more version of the events she didn’t agree with.
“The statement Diane Thomas made on the stand regarding my calling her and demanding an attorney made Stephan Schick jump up out of his chair,” Odell said later.
This bothered Odell, she said. Because, “When I had said it to him myself, he told me at the time that it didn’t make that much of a difference. But Thomas got up on the stand and she admitted to it…and he got very agitated and angry. And I thought to myself, sitting there, ‘My God, I’ve been telling you this for months and it comes out of her mouth and you’re jumping up out of the chair?’”
For Schick’s part, he later agreed there was no doubt in his mind Odell had asked for an attorney, but he categorically denied Odell’s “jumping out of his chair” statement.
“From my standpoint, if a person doesn’t want to answer questions in that regard,” Schick recalled, “why should she say why she wants to speak to an attorney?”
Lungen—and many of the cops involved in the case—had made a point to insist that Odell had asked for a civil attorney, not a criminal attorney. Big difference from a legal, investigative standpoint. Yet, should it matter what type of attorney a suspect asks for? When one is being questioned about the deaths of three babies, should the type of attorney requested matter?
“I don’t think anybody, rationally, can look at this situation,” Schick added with fervor, “and say that if she went to speak to an attorney, she wasn’t going to bring up the fact that these cops were questioning her about dead babies.”
It was a good point. Would Odell speak to a civil attorney regarding matters at home and not mention anything about three dead babies she was being connected to? One would have to be quite ignorant to think she wouldn’t. Odell was manhandled by these cops and, in a way, tricked into talking to them without an attorney, Schick insisted. Does it make her any less guilty? No, of course not. But it does mean she might have been denied a constitutional right any American in her position—guilty or innocent—was entitled to?
Schick didn’t begin his cross-examination of Thomas by bringing up the fact that his client had asked for an attorney and what type of attorney she wanted. Instead, he attacked Odell’s supposed clandestine approach to first speaking with Thomas and Weddle. By asking the right questions, Schick was able to flesh out a theory that Odell wasn’t necessarily hiding those babies in the storage shed, but had put them there to go back later perhaps and retrieve them and go to the police. It might have been a stretch, sure, but through Thomas’s testimony, Schick was able to point out to the jury that there was plenty of documentation in the storage shed that clearly proved the boxes were Odell’s. If she was hiding the babies, why leave behind evidence of who you are?
After that, Schick got into the attorney dilemma.
“When you called her on a Sunday and you reached her at home, she said before talking to you…that she wanted to speak to an attorney, isn’t that correct?”
Thomas shuffled a bit, but was certainly not made uncomfortable by the question. It was more of just getting used to the hard seat she found herself once again sitting in.
“Yes, sir,” she said without hesitation.
With that out of the way, Schick focused on the interview Thomas and Weddle had recorded. He wanted the jury to understand that the tape recording was not “representative” of everything Odell had said, but was more of a slice of time from what would become three days’ worth of interviews.
Thomas agreed.
Then it was on to the question of whether the word “stillborn” was Thomas’s idea or Odell’s. Who brought it up? It would be important, because Schick was prepared to push the theme that cops had put words in Odell’s mouth, beginning with “stillborn.”
“Did you specifically use the word ‘stillborn’ in asking her a question: ‘Were these babies stillborn?’ Did you specifically use those words?”
“No, sir, I did not.”
“Do you even know whether she was aware of the words ‘stillborn,’ or what it meant? It was never even used in your conversation, was it?”
“I did not ask her that question, no.”
“Now, did you—before entering this second conversation with her—did you ascertain from her whether she had been able to speak to an attorney?”
“No, sir, I did not.”
Whereas most witnesses were accustomed to answering questions with long, detailed—sometimes too detailed—answers, cops generally know to keep their answers pithy: yes or no. There was no reason to carry on, bringing out things that would be cause for more examination.
Schick asked Thomas a few more inconsequential questions about Sauerstein and then, “Thank you very much.”
Lungen had only one point to go over with Thomas on redirect. He had Thomas explain further why Odell wanted an attorney. At one point, Thomas said, “Miss Odell’s words to me were ‘I need to speak to an attorney to get my house in order before I talk to you again.’”
“Did she ever tell you that she wanted to have an attorney representing her in her contact with you and the police in this investigation?”
“No, sir, she did not.”
“At any time?”
“No, sir, she did not.”
“And as part of her concern about getting her house in order, is that what prompted the telling her that she’d be able to go home that night…to take care of whatever business she had to take care of?”
“Yes, sir.”
“And did that satisfy her?”
“Yes, sir, it did.”
“And did you, in fact, allow her to do that?”
“Yes, sir. Miss Odell did leave that day with Mr. Sauerstein.”
“Thank you.”
Schick stood right up and walked toward the witness stand.
“Something else, Mr. Schick?” Judge LaBuda asked.
“Yes, Your Honor.”
“So, before she blurted this thing out about the babies, she said to you, ‘I’ll talk to you tomorrow,’ is that correct?”
“Yes, sir.”
“You didn’t want to wait till tomorrow; you wanted to talk right then, is that correct?”
“That’s correct, sir.”
“But you knew it was Sunday and she probably wouldn’t be able to get in touch with a lawyer until the next day, isn’t that correct?” Schick was animated. He was sure he had Thomas on the ropes.
“I object to that,” Lungen said.
“Sustained.”
“You said she told you she wanted to talk to an attorney,” Schick then asked, “she wanted to get her house in order before she talked to you again, is that correct?”
“That’s correct, sir.”
“But she wasn’t able to talk to an attorney and get her house in order before she talked to you again, isn’t that correct?”
“Objection!”
“Overruled,” the judge said, then, looking at Thomas, “To your knowledge?”
“To my knowledge, that’s correct, sir.”
“Okay,” Judge LaBuda said, “anything else then, Mr. Lungen?”
Apparently, Schick was finished—except he hadn’t told anyone.
“No, Your Honor,” Lungen said.
“Thank you, Sergeant Thomas,” the judge said. “The next time you visit New York, please bring some sunshine with you.”
“I sure hope so,” Thomas said. “Thank you, sir.”
3
PSP trooper Robert McKee, a criminal investigator, was next. McKee was the liaison between the NYSP and the PSP as the Odell case became a New York investigation. He had met with Thomas and Weddle when they arrived in Rome, Pennsylvania. Beyond that, McKee was there when Weddle and Thomas interviewed Odell that first time. He could give the jury a timeline and explain how Odell had been allowed to go home on that first day.
Schick had little for McKe
e.
“McKee didn’t say much of anything because there wasn’t much of anything he could say,” Odell recalled. “It was just a cock-of-a-walk-strut thing, that’s all! Basically, this was a parade of people, paid by the New York State Police, to get up there and say, ‘Yes! [She] was cooperating voluntarily. [She] said all of these things. [We] would have no reason to lie.’ Even though the fact remained that they were all getting commendations, they were all standing in the back of the vestibule area of the courtroom watching the proceedings inside the courtroom.”
PSP trooper Gerald Williams took the stand late in the day. After having Williams go through his impressive list of credentials, Lungen zeroed in on the second day Odell had been interviewed. Williams had fingerprinted Odell. During that process, Williams said, he asked Odell if she would like to talk about the three dead infants found in Arizona.
Odell agreed, Williams said.
“And did she,” Lungen asked at one point, “raise any conversation with you about wanting to have an attorney before she spoke to anybody on this investigation…?”
“Not in reference to this investigation,” Williams said. “No.”
Moreover, Williams said, Odell talked about “wanting to get her house in order before she really sat down with us and what she had told us is she would have liked to [have] spoken to an attorney in reference to the custody of her son Brendon. She said her young son…and his father…really didn’t get along, and she…she described it as rock and water, just really not mixing well….”
Williams next explained that he had told Odell she was free to leave the barracks on that day. She was not going to be held over. She would have time to get her house in order, as she had insisted she wanted.
From there, Williams gave the jury a picture of Odell’s demeanor. Important to Lungen’s argument, Williams said that after Odell admitted the babies were hers, “…it looked as if she was relieved of a burden off her shoulders.”
Ending his direct testimony, Williams made a point to say Odell was not under arrest. At least not on that day.
“At some point,” Schick said a few questions into his cross-examination, “before she blurted out anything, she indicated to you she wanted to speak to an attorney, is that correct?”
“Yes, to get her affairs in order, her house in order.”
“Well,” Schick began to say with a bit of sarcasm, “you were concerned because she wanted to speak to an attorney, would that be fair to say?”
“I don’t know that would be fair. I asked her what she meant by that.”
“Mmm…so, you asked her to explain to you, a police officer in a criminal investigation,” he added, raising his voice, “what she meant by she ‘wanted to speak to an attorney,’ you wanted to delve into that, is that correct?”
“No, I think I…I delved into the part about she wanted to get her house in order and what she meant and she kind of just explained from there what she meant.”
“Well,” Schick said, again raising his voice, “you were there to protect her rights, weren’t you?”
“I was there to conduct an investigation!”
“So you weren’t there to protect her rights?”
“If she would have asked for an attorney, if that’s what you’re asking, she would have been offered one.”
The problem for Schick—or, for that matter, Odell—was that she hadn’t been forthright and direct enough, obviously, in making her demand for an attorney outwardly known. It appeared, from testimony thus far, that she wanted an attorney, yes, but it wasn’t a criminal issue and there was no immediacy in her request.
“So, when she said, ‘I want to speak to an attorney to get my house in order,’ you said, ‘Well, no matter what you say today, you can leave the barracks tonight and you’re not going to be arrested,’ is that correct?”
“Yeah, that’s basically—” Williams began to say, but Schick cut him off.
“So if she said to you, ‘Listen, I murdered those kids, you know, I wanted to strangle them when they were born,’ you would have said, ‘Okay’? You wouldn’t have been arresting her and she would have been able to leave the barracks that night, is that correct?”
“That’s correct.”
“If she said, ‘By the way, I murdered some other kids here in Pennsylvania,’ she would have been able to leave the barracks and go home, is that correct?”
“That’s hypothetical. I can’t answer that question. I really don’t know what would have happened then.”
Schick argued whether everything said should have been considered hypothetical. Williams said what Odell had told them was pretty “black and white.” There was nothing hypothetical about it.
Schick asked a few more questions regarding the tape-recorded conversation between Thomas and Odell and then released Williams back to Lungen.
For another half hour or so, Lungen poked holes in the points Schick had made and then Schick went back and tried to fill in those gaps on recross. It was a legal battle over whether Odell had asked for an attorney and what type of attorney she was talking about. But the bottom line remained: Odell left the barracks that night, the same as she had the previous night, and never consulted with a lawyer. Those cops might have persuaded her into thinking she didn’t need a lawyer, which was certainly a possibility. But the fact was that although Odell had plenty of opportunity to do so, she never consulted with an attorney, even after she had left the barracks.
CHAPTER 28
1
THE ISSUE OF whether Odell had been denied her right to an attorney, after telling Diane Thomas she wanted to speak with one, not only wore on Odell, but her lawyers, Stephan Schick and Tim Havas. How could Schick convince the jury that Odell was not allowed an attorney because, he believed, law enforcement didn’t want her to have one? In his view, each witness Steve Lungen had presented thus far had made it perfectly clear that Odell had been treated fairly in the eyes of the law. She had voluntarily gone (driven herself) to the police station each time. She could have taken an attorney with her any one of those times, Lungen said later, or not gone at all.
On the other hand, Odell was sitting in jail awaiting proceedings to begin on the second day of trial. To her, she saw nothing short of a conspiracy taking place—an ambush by Lungen and his goons to secure a conviction.
The buzz around the courthouse was that Dr. Michael Baden was coming into town to present hard evidence the babies had been murdered. Wherever Baden went to testify, there was always some sort of stir in the air, particularly because he was so well-known. On any given night, one could turn on Fox News Channel and see Baden sitting across from Greta Van Susteren, talking about whichever high-profile crime was news at that moment. Baden had a knack for explaining things in lay terms. There was no doubt his testimony would add a certain amount of credibility to Lungen’s case; suffice it to say, Baden had testified in some of the more high-profile trials of the past thirty years, most notably, the O. J. Simpson fiasco in the mid-1990s.
Sitting in the back pew of the courtroom as proceedings began on Tuesday morning, December 9, was a little old man who himself had many of Baden’s same credentials. Dr. Conrad Thurston was in the courtroom, rumor had it, to listen to Baden and possibly offer rebuttal testimony for Odell’s camp, spanking any theories Baden might be bringing up to support the prosecution’s case.
More than one person later claimed Dr. Thurston was merely a befuddled old man who would show up at trials where Baden testified to try to besmirch Baden’s stellar reputation. Some even went as far as to say Thurston held a vendetta against Baden because Baden had been responsible for getting Thurston thrown out of the medical examiner’s office in New York (which was untrue). There was a hearing, Baden admitted later, regarding Thurston, and Baden testified and Thurston was expelled from office, but Baden wouldn’t go as far as to say Thurston had been following him around. In fact, Baden spoke highly of Thurston, saying he was a competent, intelligent doctor who had written several articles
on sudden infant death syndrome (SIDS) and could have possibly even helped Odell.
“He’s always very deferential and polite to me,” Baden recalled. “I see him rarely. I don’t think he’s crazy. He’s a smart guy.”
Thurston was a doctor of osteopathic medicine. More commonly known as DOs, osteopathic physicians are “licensed to perform surgery and prescribe medication.” Like a medical doctor, an osteopath completes four years of medical school, but also receives “an additional three hundred to five hundred hours in the study of hands-on manual medicine and the body’s musculoskeletal system”—which could be important to Odell’s case, at least from a medical, scientific basis. Odell’s attorneys needed an expert of their own to counter Baden’s testimony. Many were assuming Thurston was that witness.
Schick, however, later denied having anything to do with Thurston’s presence at trial. “No, no, no,” Schick said, “we never planned on calling him to the stand.”
With good reason.
In 1976, Thurston found himself involved in a trial that involved his boss at the time, a man who had been brought up on charges ranging from “taking body parts without permission of next of kin” to “conducting experiments” on those same body parts. During the investigation, Thurston’s boss charged him with warehousing body parts of his own. Investigators later uncovered “a large cache of human bones and tissue hidden in several…storage rooms” Thurston was renting. Thurston was then charged, according to an article written about the case some years later, with illegally “beheading eleven bodies and stripping the flesh from fourteen others.”
The charges against Thurston were later dropped. The judge in the case ruled that Thurston had been “carrying on legitimate research.” In turn, Thurston sued his former employer and won a settlement reportedly in the neighborhood of $2 million. But one could argue that his reputation had been destroyed, regardless of the outcome of the case. More important, Baden had testified against Thurston during the civil lawsuit.
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