At times, Schick became heated and animated, badgering each witness, but both men, seasoned cops who had taken the stand dozens of times as part of their jobs, spoke with an articulate, intelligent, and calming temperament. Odell had said she heard the babies cry, gasp for air, and cough. She had read the statement and signed it. To Scileppi and Streever, what more was there to discuss?
Next witness.
Near the end of testimony on day three, the jury was able to hear from Odell as a redacted transcript of the tape-recorded interview on May 17, 2003, with Diane Thomas and Bruce Weddle, was read aloud. The following day, December 11, the remainder of the transcript was read before Lungen put his final witness, Investigator Robert Lane, on the stand.
Lane reiterated what Scileppi and Streever had said already, but added one solid bit of information missing from the trial thus far: motive. He testified that Odell had said the children were “bastards” at one point in his conversation with her, and she had kept the pregnancies hidden from Mabel for that reason. It was the first time the jury had been given an explanation as to why Odell would have killed the children—to hide the pregnancies from her overbearing mother, whom she told police she was terrified of.
After Lane testified, the judge ordered the notes Lane had taken during his interview with Odell, where he had specifically written the word “bastards,” be redacted to conform to the Huntley ruling that barred the jury from knowing anything about the 1989 case. When that was done, the jury was asked to step out of the room for a time.
Lungen indicated he was prepared to rest his case. With that, the judge asked Schick if he needed any time before calling his first witness.
“Judge, actually,” Schick said, “I would like to be able to talk to Miss Odell in the conference room here. Ultimately, it’s up to her if I call witnesses and who they might be.”
Odell, twirling her rosary beads, looked on and nodded.
The judge said okay.
It was nearing noon, a good time to break for lunch. The jury was brought back into the courtroom and Lungen officially rested his case. Then the judge ordered everyone back at 12:30 P.M., whereby Stephan Schick would begin presenting his case.
According to Odell, after the judge called a recess, she and Schick walked into the conference room and sat down. It was cold, the winter air from outside bleeding underneath a tiny opening in the bottom of the door. Odell took a seat next to Schick, and at first, she said, she just stared at him, waiting for his advice.
“I think I have done a very good job of punching holes in this case,” Odell recalled Schick telling her. “I really don’t think you need to testify.”
“Okay, what happens if I don’t testify?”
“Well, if you don’t testify, we don’t have to put the psychologist on the stand.” Schick was referring to Janet Hooke, a psychologist who had interviewed Odell several times. Schick was convinced, he said later, that Hooke’s testimony wouldn’t do anything to help Odell. “Furthermore,” he added, “that fourth child doesn’t come into play.”
Odell said she stared at Schick at that point. “I wasn’t even worried about the fourth child coming into the trial,” she noted later. “Because Lungen had already put it out in the newspapers, so the jury knew about it, anyway. What the hell was I worried about?”
Schick later said that as an attorney, he had to believe when the jury was questioned during voir dire about the 1989 baby, they were being honest as to their knowledge regarding it. He couldn’t “assume” they knew about the baby and shape his case around that theory. It wasn’t a professional way to go about trying a case that could have such damning effects on his client.
“Does that mean,” Odell said she asked Schick next, “everything I talked about with Janet would be put out on the stand?”
“Yes,” she recalled Schick telling her.
“At this time,” Odell said later, recalling that day, “even though I was beginning to open up about a lot of things that had happened, there were still very many issues that I had not addressed. And I really didn’t want that sitting in black and white in a newspaper before I had a chance to come to terms with it.”
When Odell heard Schick’s answer regarding Janet Hooke on the witness stand, likely airing all of Odell’s past experiences, she said, “Okay, then I don’t think I’m going to testify…but, can we use the other people?”
“Okay,” Schick answered, according to Odell later, “if that’s what you want to do.”
“Let me go to lunch,” Odell said, “and let me think about it.”
Odell claimed if she could “do this” without getting on the stand herself, it was something she was interested in pursuing.
Schick was deferential toward Odell’s feelings about how to proceed with her defense, but he insisted that putting anyone else on the stand besides Odell would not have helped her case. It would have hurt it, more than anything. Proving Odell was abused as a child was fine, but it still didn’t address the main theory of Lungen’s case: Dianne Odell had murdered the children.
Odell believed the information her half brother could present to the jury—and she admitted she didn’t know the extent of all the information—would have helped her defense raise reasonable doubt. However, Schick still didn’t want to use it.
“That’s not what Schick said to me,” Odell claimed later. “He told me that the information my brother had would ultimately help me.”
“I could have put her on the witness stand and we could have argued until the cows came home about her abusive childhood,” Schick said later, “but how far does that take you? Does that give you license…or does that give you ability to have four dead children and it doesn’t mean anything, it doesn’t matter?”
When court resumed after lunch, the judge looked at Schick and asked, “Does the defense choose to call any witnesses?”
Odell thought it was odd, she said later, that when she walked into the courtroom, her family was sitting in back of the defense table. She knew something was wrong at that point.
To the amazement of nearly everyone in the courtroom—including Odell, who claimed later she had no idea Schick was going to do it; she said she thought they were going to make a decision together—Schick simply said, “No, Your Honor.”
In effect, Schick was resting his case without calling one witness.
“He played both sides against the middle,” Odell said. “He told my family I wanted to rest and told me my family wanted me to rest.”
To his credit, Schick vehemently denied ever doing that.
Nevertheless, the judge then explained to the jury that Schick had chosen not to call any witnesses, which meant “the evidentiary portion of the trial” was over. Closing arguments would follow.
It would be a few days before closing arguments, though. The court had several matters to take care of with Lungen and Schick. Until then, jurors were asked not to discuss the case.
CHAPTER 31
1
STEPHAN SCHICK HAD a job ahead of him. He needed to convince a jury that Odell hadn’t killed her children, but was perhaps a victim of abuse by her “ex-husband, parents, and other men in her life,” he said. This was one of the reasons why her children ended up dead. He had to do this, however, despite not putting one witness on the stand.
“First, was there proof beyond a reasonable doubt,” Schick asked in an unthreatening, soft tone as he began addressing the jury during his closing argument, raising his hand, using three separate fingers to count off his points, “that these babies were born alive? Second, was there proof…that Dianne was guilty of intentional murder? Third, was there proof…Dianne Odell was guilty of depraved-indifference murder?”
Principally, Schick focused on the one fact he thought Lungen had failed to prove: that the babies had been born alive. And if the jury believed the children were stillborn, well, there was no chance Odell could have murdered them.
“If they were not born alive, this is not a murder case—period!�
� After a pause, Schick then began an attack on Dr. Baden. “He testified that there was no medical or scientific evidence he was aware of that he could say the babies were born alive.” Next, in a patronizing, almost angry manner—as if to suggest Baden was some sort of wild-haired, wacky scientist—mocking Baden’s own words, Schick said, “‘Well, what do I believe? What do I believe from what other people are telling me?’ That may be fine,” he continued more seriously, “in a classroom or at a university…but that’s not where we are.”
He asked the jury to consider the prosecution’s supposed “expert” testimony and weigh it thoroughly: fact or opinion?
There was an “alternate” theory, Schick said, for what happened to those babies and why Odell toted them around with her for so long—other than Odell “being a murderer.
“She didn’t want to part with these babies.”
Next he continued berating Baden, calling him “bias[ed]” and “un-independent.” He essentially asked the jury to withdraw his testimony and concentrate on the facts.
“It’s not a crime to have a baby at home. Does it immediately jump to murder if you have a baby at home and the baby doesn’t live?”
It was a good point, made by a competent attorney with decades of experience, who had taken on a case, he knew from the onset, that was nearly impossible to win.
He said Odell carried the babies around with her from state to state, for twenty-plus years, because “she couldn’t bear to part with them.”
Finally, “Her children are the only thing in her life that ever loved her back,” he concluded with an odd sense of contentment in his voice. It was clear he believed wholeheartedly in what he was saying. “I am begging you to send this woman back to her children.”
2
In a courtroom, Steve Lungen spoke loudly, with authority. He liked to use his hands to explain things, and was well-known for using graphics and charts to accentuate the underlying themes of the cases he tried.
Thus, on the afternoon of December 15, 2003, as Lungen’s closing argument in the People of the State of New York v. Dianne Odell began, a projection on the screen in the courtroom stared back at jurors. As Lungen began to wrap up a case he firmly believed he had proven beyond a reasonable doubt, there was a sign that, in his view, explained it all:
A MOTHER WHO GIVES BIRTH TO 8 HEALTHY CHILDREN IN HOSPITALS DOES NOT HIDE 3 ADDITIONAL PREGNANCIES; CONCEAL THEIR BIRTHS; REFER TO THEM AS THE “BASTARD CHILDREN” DELIVER THEM ALONE, AT HOME, IN THE BATHROOM; PACK THEM IN BOXES (TO PRE VENT THEIR DECOMPOSING BODIES FROM LEAKING OUT); HIDE THEM AWAY IN CLOSETS AND ATTICS AND SHEDS…AND CARRY THEM WITH HER, FROM STATE TO STATE, ACROSS THE COUNTRY *** TO PREVENT THEIR DISCOVERY *** FOR 20 YEARS
UNLESS SHE MURDERED THEM
The message was there to remind jurors of the facts in the case and the circumstantial evidence that seemed particularly damaging to Odell as it sat there, gnawing at everyone, begging jurors to try to focus on what the “circumstances” surrounding the deaths of the children explained. Lungen knew he couldn’t let jurors forget how indicative each set of circumstances in Odell’s many pregnancies were to the totality of the case. Nor could he allow himself to fail to make the jury aware of the unadorned fact that the law protected all victims, regardless of age, creed, color, race, ethnicity, or—most important—relation to the accused.
“I don’t have the luxury, as prosecutor, to talk to you about things that are speculative, things that—by guess-work—were never testified to on the witness stand,” Lungen said after introducing himself. “…Much of what Mr. Schick told you about this afternoon was fiction-based.”
Lungen had a burning desire from the beginning of the case to represent the three babies who, he said, never had a chance at life and, in death, had no one to speak for them.
“The added pressure is that I am here talking for three babies and there is no one—no one here but me— to talk to you about these three babies. And I feel that. Make no mistake about it.”
As he twisted one of his cuff links and steepled his hands in front of his face, Lungen paused before continuing. Using graphics once again, he put up a second exhibit on the overhead projector introducing jurors to each one of the children.
“I want to introduce you to Baby Number One…. Today he would be twenty-one years old. [And]…Miss Baby Dandignac [Baby Number Three], she would be eighteen today. And we know Mr. Baby [Number Two], he would be age twenty. There’s nothing abstract about these babies. They were real!” Then he hit the podium with his fist: “They were born alive.”
From there, Lungen went on to quote one of the nation’s most esteemed and noted presidents. Slowly putting on his glasses, looking down at his notes, “Abraham Lincoln said, ‘All that I am, of ever hope to be, I owe to my angel mother.’”
Then, later, “Feel sorry for her?” he yelled with energy. “I would…if she didn’t kill three of her babies.”
Pointing to the overhead projector screen, then turning and looking at jurors, once again Lungen said that the babies were real people.
“They existed. And they were born alive…. Should you cry for the defendant? I leave that to you. She cries for herself. She tells you she cries for these babies. You can fool me once. You can try to fool me twice. But I’m no damn fool the third time.”
With a commanding presence, he didn’t miss a beat, recapping just about every major aspect of his case.
“Fool me once, shame on you. Fool me twice, shame on me. But I say to you: Fool us three times, and shame on all of us. The defendant, by the evidence, is nothing less than a serial killer and murderer of babies.”
Further along, “Odell hid the babies to hide her crimes, and carried them with her so no one would find out what she had done.
“She talks about ringing in her ears,” he shouted. “The screaming in her ears she’s telling you about, that’s the screaming of those babies. She’s been hearing it for two decades.”
Ending what could be called a rather animated, yet at the same time intense and blunt closing argument, Lungen quoted Pulitzer Prize–winning poet Carl Sandburg: “‘A baby is God’s opinion that the world should go on.’ Ladies and gentlemen,” he said before pausing a moment and lowering his voice, “do not let this defendant defy God’s opinion by ending the lives of three of God’s children.”
The courtroom was silent. It had been the first time, save for Odell twirling and twisting rosary beads in her hand and mumbling silent prayers to herself, that anyone had looked at the situation through a pious lens.
In the end, Lungen’s final argument was everything a closing should have been: terse, direct, emotional.
Judge LaBuda instructed the jury on the law. It was late in the day.
Then, “I will resume tomorrow morning at eight-thirty. You are going to be kept, as we talked about, sequestered….” From there, he warned jurors that they were not entering into deliberations yet. “It would be a disservice to everyone, including yourselves, so please don’t discuss this case amongst yourselves this evening. Don’t discuss this case with anyone.”
After the jury left the courtroom, the judge asked if there was anything else.
“Yes, Your Honor,” Schick said, and stood.
“What do you have, Mr. Schick?”
“Judge, I would request a mistrial based upon the impropriety contained in the prosecution’s closing statement that included…vouching for the police. Identifying the police action as ‘we in law enforcement’ and ‘we were this and we were that, the police did nothing wrong.’”
Schick continued, accusing Lungen of stating numerous inconsistent statements that were simply untrue in his opinion, thus painting a bias portrait of Odell and implying that if she had given birth to the three babies in a hospital, they would have survived.
“Finally,” Schick continued, “concluding his statement…[Lungen sat down and left] the poster up while the court was giving the instructions to the jury…his misleading poster of what the defendant
allegedly said or meant. For all those reasons, I respectfully request the court declare a mistrial.”
When Lungen had his chance to speak, he said he had based his argument on the credibility of police officers. “There is nothing in what Mr. Schick said that is the basis for any mistrial whatsoever.”
“Mr. Schick,” the judge said kindly, “your application is denied. The main reason Mr. Lungen’s comments were in fair response [is that they were] part of the ebb and flow of a summation in a very emotional case.”
3
The following afternoon, December 16, Odell walked into the courtroom and, as usual, took a seat next to Schick and Havas. It was time to learn her fate. After five hours of deliberations, the jury had come to a decision. Since the start of trial, which had lasted a total of four days, Odell looked like she’d aged ten years. With her knit sweater, button-up dress shirt, olive skin, penciled-in-looking, thin, dark eyebrows, and salt-and-pepper hair, she resembled actress Bea Arthur during her days on the hit ’70s sitcom Maude.
As the jury foreperson stood, Odell appeared nervous and shaky as Schick put his arm around her shoulder to comfort her.
“Not guilty.”
There was a sigh of relief on Odell’s side of the room. On three counts of intentional murder, she had been found not guilty. Could it be? Was Odell going home?
Lungen looked stunned. What?
“That first not guilty on the first count, intentional murder, I think that made some butts tighten on the prosecution side,” Heather Yakin said later. “Dianne was pretty emotional throughout the trial…. [She]actually reacted to things in appropriate ways, crying when the babies were mentioned or shown, stuff like that. Lungen, of course, thought it was all an act. I don’t think anything in the case was that simple. I think Odell probably did have a horrible life, and I’m sure she loves all of her living kids. That said, I don’t know what really happened during those births. I think deep down, Dianne knows, but I can’t decide if she’s ever admitted it to herself.”
Sleep in Heavenly Peace Page 36