Sleep in Heavenly Peace

by M. William Phelps

  Odell later saw great potential in calling Thurston to the stand—and she was overwhelmed by the fact that Schick didn’t want to do it.

  “The man had offered his services to Schick to refute everything Dr. Baden was going to say,” Odell claimed later. “Evidently, this guy had some information….”

  Schick never consulted with Thurston, he said, and never considered using him to testify. It was just one more piece of the puzzle Odell didn’t quite understand, or want to see at face value.

  Before the jury was brought in at 10:05 A.M. on December 9, Schick stood up before the court and said, “I have an application before the jury comes in.”

  “Okay,” the judge said.

  “Judge, it is my application, my request, that the court reopen the issue of the Huntley hearing based upon the testimony of Detective Thomas not available at the Huntley hearing. That being that Miss Odell, after being telephoned on Sunday, informed Detective Thomas when requested to come in for purpose of giving fingerprints, which would not be permitted absent a warrant unless it was voluntary compliance, and, at that point, when told the purpose was for the legal issue of the fingerprints, [Odell said], ‘I don’t want to come in. I don’t want to say anything any further. I want to consult an attorney.’”

  The bottom line, Schick argued, was that if Odell’s rights had been violated—after all, Thomas had admitted on the stand that Odell requested an attorney—then the tape-recorded interview and statements she made afterward should be suppressed.

  “Mr. Schick,” the judge said, “if I were to grant your relief and require, now based upon testimony that was unavailable at the Huntley hearing, suppression, wouldn’t that cause a mistrial?”

  “Well…,” Schick said, “it would require a dismissal of the indictment, not a mistrial.” Without the statement by Odell, the state had “insufficient evidence as a matter of law of homicide.”

  “Okay,” the judge said.

  “And of asphyxiation!” Schick added.

  “What I am going to do now,” the judge said calmly, “is we are going to proceed with the trial.”

  2

  Times Herald-Record reporter Heather Yakin had been in court since the start of the trial. She never got that “exclusive” story she was digging for, but she ended up making friends with Sauerstein and potentially could convince him to talk after the trial was over.

  “During the trial, I said hello to Bob Sauerstein, but he seemed to need his space during the testimony, especially with some of [his and Dianne’s] kids there. He seemed pretty stressed.”

  On day one of the trial, Yakin filled two steno notebooks. She was busy all day writing, taking down testimony, working up a story. But she was, like nearly everyone else in town, looking forward to Dr. Baden’s arrival. Not so much because of the star power Baden’s appearance carried, but more for the weight of his testimony. Many assumed Baden was going to present hard evidence that Odell had murdered the children. If he couldn’t do that, some suggested, Lungen was in big trouble. It was fine to argue a woman had murdered her babies, but when it came down to it, a jury wanted evidence.

  Along with everyone else, Yakin would have to wait for Dr. Baden. Lungen was calling Investigator Bill Maloney first, then Stephen Swinton, the DNA supervisor at the Forensic Investigation Center in Albany, New York.

  After Bill Maloney raised his hand and got comfortable in the witness chair, he explained how he had traveled to Arizona with a few investigators to collect the childrens’ remains, along with several other key pieces of evidence. Maloney’s testimony was chiefly designed to lay the groundwork for Lungen’s big gun, Dr. Baden. The jury would want to know how the babies had made it to New York. Maloney was that connection.

  Interestingly, when the judge asked Schick if he had any questions for Maloney, Schick said, “No, I do not.”

  After a short break, Swinton took the stand and talked about his DNA work at the lab, his experience, and how he became acquainted with the Odell case. He said he had attended the autopsies of the babies to collect “biological material from each of the remains for future DNA analysis.”

  Swinton then clarified, by definition, how the DNA process worked. “You receive half of your DNA from your mother and half from your father,” he said at one point. DNA is contained in “every nucleated cell of the body.”

  The main purpose for DNA analysis was to try to figure out who the fathers of the babies were. Lungen put up a graph on the overhead projector screen reminiscent of those mind-numbing science charts found in any high-school classroom, and had Swinton explain how there wasn’t enough DNA available in Baby Number One’s body to develop a profile. As for Baby Number Two, Swinton could only manage to get a partial profile, he said. But Baby Number Three, he explained, was a clear match to Odell. Furthermore, there was no doubt in Swinton’s mind that David Dandignac had fathered the child.

  For the next hour, Swinton talked about the complexity of DNA as a science, along with how it had been applied in Odell’s case.

  When Lungen finished, the judge asked Schick if he had any questions.

  “No questions.”

  3

  A large man, Dr. Michael Baden, with wiry wisps of whitish gray hair, stood tall at about six feet four inches. He carried an enormous amount of grandeur and authority when he entered a courtroom. If anyone hadn’t recognized Baden from his appearances on television, they certainly had heard by the time he arrived who he was and how important his testimony was going to be for Lungen.

  “Dr. Baden’s testimony was key for me,” Heather Yakin recalled, “because I wanted to know how [the prosecution would prove] homicide by smothering mummified newborns. Hey, you’ve got to know what the evidence really is. And I knew there was definitely a strong emotional component to the case for Lungen, for Baden, and for some of the investigators who’d also been involved in the 1989 case. Baden’s argument, I thought, [would] essentially come down to the weight of all the combined facts: three dead babies, hidden for twenty years, moved around before finally being abandoned, left in boxes wrapped in old blankets, sheets, and towels. Plus, Odell’s eventual admission to cops that she’d heard a cry.”

  Yakin was accurate in her assessment. In theory, she spoke for the community. For Lungen, Baden was going to wrap the case up and present the jury with a clear picture of what had happened, how, and why Odell was guilty.

  For the first half hour, Baden went through his long list of credentials, beginning with where he had started as a pathologist and where he now worked. In between, Lungen had him talk about his work and why it was important not only to rely on the forensic evidence but all the evidence, which, of course, would be imperative to Lungen’s case.

  Baden was the chief medical examiner for New York City at one time, he explained. In 1985, he was transferred to the NYSP, “to a new division that was being set up, the Forensic Science Unit, where I am still employed as codirector of the Medical-Legal Investigation Unit.”

  Not only was Baden one of the nation’s most respected and esteemed medical examiners, but he had just returned from Singapore, he said, where, at the request of the Singaporean government, he had helped evaluate the medical examiner system of the entire country. He had also been to Bosnia to examine the remains of mass graves.

  “When you work on a case that involves police,” Lungen asked, getting more into the reason why Baden was there, “particularly when doing work for the state police, you try to review everything the state police have recovered in their cases?”

  “Yes, I do.”

  “And do you try to make yourself acquainted with what they have learned and what their investigation shows…to factor that in, or in your own mind exclude it, however it plays in your ultimate opinion and conclusion?”

  “Yes.”

  “And in this particular case, you were provided, were you not, with various information from the state police that included statements made by the defendant, particularly written statements?”
>
  “Yes.”

  “And oral statements?”

  “Yes.”

  “Okay. Prior to your doing anything on my case, prior to your doing an autopsy, do you have to make some gross observations? Do you not have to sit and take a look at what you have?”

  “Yes. Before doing any autopsy, I try to gather as much information as I can, so I can do an intelligent autopsy.”

  “And in this case, this information included the police investigation?”

  “Yes.”

  “Did you also have the benefit of X rays? And you could take your own X rays concerning this?”

  Baden said he had examined X rays that already had been taken by doctors in Arizona and also at the Albany Medical Center. He said he had even spoken to the pathologist in Arizona who had originally examined the remains of the babies. After that, he broke down the technicalities involved in looking at the results of the X rays of the three babies. It was monotonous testimony at times, perhaps too clinical in nature, yet necessary in order to bring into the record a more medical explanation of the evidence. Juries bored easily. Prosecutors and defense attorneys are always aware of that. But juries are not made up of uneducated, uninformed people; they need certain technical and scientific information in order to grasp the larger picture of the evidence they will be looking at and studying during deliberations.

  Baden gave long, detailed answers. He wanted to be sure the jury understood exactly what he was saying. They deserved it. It might seem long-winded and procedural, but to get to the truth—at least from a medical perspective—one must be privy to all the information, not just sound bites that might make for interesting headlines.

  As Lungen handed Baden certain photographs of the babies, the judge addressed the jury, “Ladies and gentlemen, you will be seeing shortly, as you have saw yesterday, certain photographs which many of you…may deem to be unpleasant….”

  Within a few moments, the photographs were put up on the overhead projector for everyone to see while Baden began explaining the differences between the mummified remains of one baby and the bone fragments of the other two, on occasion using a laser pointer to direct jurors to certain sections of the photographs.

  “If we go more to three o’clock,” Baden said, pointing to one of the X rays, “…this is the top of the X ray right here. You can go all the way down. See! This obviously is the skull of the baby. The baby’s skull was fully developed. These are the jaws,” he added, moving the pointer down a bit. “There are no teeth here yet. There are no fractures. This is the spine…bones coming down in the arms. The upper arm, the elbows, the shoulder joints…”

  As Baden spoke in graphic detail—but sounding rather congenial and calm, as if it were all some sort of biology lesson—the full structure of the baby emerged. Odell cried silently. The images were equally disturbing to others as most sat and listened to strangers talk about dead children as if they were mere science experiments.

  Perhaps most shocking of all was an X ray of mummified Baby Number Three, whose skeleton was entirely intact. There, before everyone, was a full-term baby, cradled in a fetal position, knees tucked to chest, arms seemingly hugging itself, as if still in the womb. The X ray was clear, a full-figured structure of the baby, every bone and every curve, perfect.

  “Baby Number Three,” Heather Yakin said later, “that was the one that got the jurors…. You could see in that X ray that he had been a perfectly formed little boy.”

  Little boy…exactly what Lungen had been saying all along. Let no one forget these babies, only minutes or hours old, were human beings.

  If there was any question in the jury’s mind that they hadn’t been dealing with fully formed human beings, the X ray Baden was pointing to answered it without question.

  It was 12:30 P.M. With the sober images of the X rays playing in the minds of jurors, the judge decided to break for lunch. Everyone was expected back in the courtroom an hour later, at 1:30.

  CHAPTER 29

  1

  AFTER THE LUNCH break, in the span of an hour, Dr. Baden explained the X rays in further detail, telling jurors what the results meant to him as part of his entire investigation. With that, after discussing briefly how he meticulously studied each X ray, on top of conducting an autopsy on each child, Lungen asked, “Could you state, all by itself, that you would know either the manner or the cause of death?”

  “No,” Baden said, “I could not.”

  “All by itself?”

  “Just by examining the remains, I would not be able to determine each baby by itself the cause or manner of death. I can eliminate a lot of things, but I could not eliminate the cause of death.”

  Lungen asked him to give an example.

  “I could eliminate traumatic injuries to the bone. Most traumas—that is blunt-force trauma, gunshot wound, stab wounds—that cause death cause some injury to bone. So, there was no injury to bone that speaks against a violent death of that nature. I could also eliminate, even without the tissue being present, many kinds of natural diseases that would affect bone….”

  Lungen continued asking questions about procedures and what other elements generally aided Baden in finding a cause of death. Was the fact that the babies had been abandoned and stored in boxes important?

  Baden said it was.

  “Now, you became aware…prior to making and formulating any opinions and conclusions, that at some point during the police investigation the defendant had made various statements to law enforcement?”

  “Yes.”

  “And those statements were made available to you for your consideration, were they not, as to how they impacted on what happened to these three babies?”

  “Yes.”

  Lungen then went into a series of questions detailing how Odell had, at first, lied to police. Then he talked about how she had not received any prenatal care while she was pregnant with the three dead babies. Baden agreed it was imperative in his investigation. Additionally, he said, it was also important to him that Odell had given birth to eight living children at hospitals, but the three dead babies had been born at home.

  Then Lungen asked, perhaps, the most critical question of the trial thus far.

  “With respect to Baby Number One, would it be important to you, as a forensic pathologist, to know that the defendant said to the police in substance, ‘I heard the baby’s first muffled cry’? And then she said she lost consciousness, and then when she came to, she said there were several inches of one of the towels inside the baby’s mouth? Do those two statements, hearing muffled cries and several inches of a towel inside a baby’s mouth, have any significance to you, in your opinion, with respect to Baby Number One?”

  “Yes.”

  “Why?”

  “The significance is, the baby was born alive to be able to make her cry and that somebody put a towel into the baby’s mouth—and that, in itself, would suffocate the baby.”

  “Why do you say, ‘Someone put a towel in the baby’s mouth several inches’?”

  “Because the baby could not have done that to itself.”

  Two questions later, Lungen went for it: “What would you determine the cause of death and the manner of death?”

  “I would determine the cause of death to be traumatic asphyxia by suffocation by towel in the mouth as the cause of death. And the manner of death would be homicide.”

  Then Lungen had him tell the jury exactly why he thought Odell had killed the children and how, in his opinion, she had done it.

  By the end of Baden’s direct examination, Lungen wanted to be sure he had made another point clear to the jury: illegitimate children die at a higher rate.

  “Infanticide,” Lungen said, “from a pathologist’s point of view, essentially means what?”

  “Death of an infant.”

  “Is it a fair statement that in your experience you see infanticide more prevalent with illegitimate children?”

  “Yes…”

  “Right! In this case, all t
hree children were born alive, in your opinion?”

  “In my opinion, yes.”

  “I have no further questions, Doctor.”

  2

  Schick wasn’t about to pass on the opportunity to question Baden. After all, as esteemed and renowned as he was, Baden had just called Schick’s client a murderer.. To not cross-examine him would have been detrimental to Odell. Schick needed to try to rebut some of what Baden had said, or least drive home the point that it was his “opinion,” which didn’t necessarily constitute fact.

  Schick wasted little time getting into it with Baden.

  “Sir, firstly, you said when a forensic pathologist makes a determination of homicide that that can mean many things, is that correct?”

  “Yes, sir.”

  “That homicide includes many different criminal charges, isn’t that correct?”

  “And no criminal charges. Criminal and noncriminal charges, yes, sir.”

  Baden wasn’t some callow, just-out-of-med-school doctor, summarizing his first homicide case for a jury. He had been on the stand more times than he could recall. He was a professional, and his “opinions,” regardless of how they were perceived by Stephan Schick, would have a major impact on the jury’s sense of the case.

  “Homicide can be accidental?” Schick asked next.

  “We, medical examiners, don’t use it in that term. The courts may decide that it could be unintentional, inadvertent.”

  “Homicide can be negligent homicide?”

  “Yes.”

  “It can be a reckless homicide?”

  “Yes.”

  “It can be manslaughter?”

  “Yes.”

  “Manslaughter first degree and manslaughter in the second degree?”

  “Yes.”

  “And it could be murder?”

  “Yes. And can be excusable and justifiable.”

  Odell sat looking at both Schick and Baden, wondering what was going on, as they volleyed questions and answers back and forth in rapid succession. She wasn’t too concerned about courtroom tactics and legal gibberish. She was focused on telling her side of the story to the jury and making each one—or just one—believe it had been Mabel who had killed her children.