Sleep In Heavenly Peace (Pinnacle True Crime) (30 page)

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.

1

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.

There was one thorn that could perhaps cause Lungen some problems during trial. So, like any experienced prosecutor, he attacked it head-on. “The defendant was cooperative,” he said, pointing at Odell at times, looking at the jury at others. “She spoke freely, somewhat guarded about information she was going to give.” He was talking about the interview Odell had agreed to with Roy Streever and Thomas Scileppi in Waverly, New York, as the media converged on her home and drove her away. The cadence and tone of his voice varied at times, and when he got to certain words and phrases, he called to mind how important certain pieces of evidence would become. “She was
not
under duress or in custody. Like I said, she
drove
herself there. She
expected
the New York police to be there and she
agreed
to talk.”

Essentially, Lungen was saying Odell had agreed voluntarily to speak about the case to the police. There would be no question about it.

“Somewhere around eleven o’clock,” he continued, getting to the heart of his argument, “the defendant…said that the baby moved or gasped, showing signs of life. And
that
simple statement”—he paused a moment for effect—“changed the entire character of everything that was going on. Because not only were these babies now full-term babies, but now we had an indication from the
defendant
herself that the babies were born…alive…. And, as it turned out, she tells them with respect to each of these three babies, they either cried, coughed, moved, gasped, something.”

Lungen needed to clarify how Odell had changed her story several times throughout the three days she was interviewed. One of those stories included who the fathers of the children were.

“Knowing she’s under arrest for murder, realizing obviously the story is up, she then tells Investigator Lane with respect to Baby Number One, born in 1982, ‘No,’ she was not raped! In fact, the father of that child she believed to be her brother-in-law, her ex-brother-in-law. She was married to James Odell and it was
his
brother. She believed that’s who the father was. She was having an affair with him.”

After introducing Dr. Baden as a “world-renowned pathologist,” Lungen claimed Baden would walk into the courtroom and tell the jury the babies had all been born alive and had all died of “traumatic asphyxia. By definition, it means an interference with the ability of the babies to breathe by force. Essentially,” he added, lowering and raising his voice at appropriate times to bring about the true horror of his case, “it means that the
defendant
suffocated to
death
each of these three
babies
.”

The courtroom went silent at that point. It was a stark reminder, an image, perhaps, of a woman giving life and taking it back in one quick, constant, evil moment. Could Dianne Odell—sitting, crying at times, holding on to a set of rosary beads as though they were a lifeline, rolling them through her fingers in prayer—have given life to these children and, by the violent force of her own hands, taken it away the next? Was she playing God?

If so, jurors might be asking themselves several questions:
Why wouldn’t Odell just abort the pregnancies? Why would she go to the trouble of carrying them for nine months, going through the process of labor pains and having the children at home, and then murder them? Wouldn’t it have been easier just to abort them? That way, there would be no evidence left behind. Nothing to explain. Was Odell that evil, that cold-blooded, to want to give these children life and then snatch it away?

Lungen, as he argued his case, certainly thought so—and was making it clear by hammering his point home to jurors, who possibly sat in utter shock at the mere image of what the last moments of life must have been like for the babies.

As he carried on, perhaps getting caught up in the moment, allowing his passion for the case to dictate his argument, Lungen began to talk about the legal aspects of the charges against Odell, one of which being intentional murder.

“Now, intentional murder essentially means that a defendant
intended
to cause the death of that person. It was
that
person’s conscious aim and objective to bring about the
death
of another person.”

Schick, staring at his colleague and friend, shaking his head in disbelief, stood up after hearing the remark. “Objection, Your Honor. This is not an opening statement anymore.”

Lungen stopped, looked toward the judge.

“Objection will be overruled. Ladies and gentlemen, the law will be given to you in tremendous detail at the conclusion of the case. What the attorneys say to you is merely their argument.”

With that, Lungen then talked about the six different counts of murder Odell was charged with and, finally, worked his way into a dramatic closing statement.

“Some of you may believe that babies’ lives get devalued. The killing of a baby is no different than the killing of an adult…. Some of you may say, ‘I can’t believe this.’ Some of you may say it sounds sick. That’s not what this is about. This is about whether under the law, the defendant murdered her three babies intentionally or by depravity. And you will find that she committed murders in each one of these three babies and, at the end of this trial, we will ask you to render a verdict that is fair and just, based only upon the evidence and nothing else.”

He paused and began walking back to his table. “Thank you very much.”

The judge, after what had become a long, emotionally charged opening, decided a break was in order.

Stretch your legs. Take a moment to reflect. This was only one side of the story. Stephan Schick was up next. He would, undoubtedly, have a different story to tell.

2

Stephan Schick knew he couldn’t get beyond the fact that his client had given birth to the children and they had died under her care. It wasn’t one or two babies; it was three, possibly four, if Baby Doe made it into trial. Schick wasn’t naive; he understood a jury wanted answers. He couldn’t overlook that Odell—like it or not—had given police a damaging statement. Fundamentally, he had to try to focus on Odell’s responsibility for the crimes and maybe point a finger at her without placing her under the same light as a murderer. Tone it all down some. Yes, she had done some things that might constitute wrongdoing. But she was no cold-blooded murderer. Get that out of your head.

First and foremost, he wanted to attack Lungen’s argument as a whole. “One would think this case is over,” Schick began after introducing himself. “One man can give a speech for an hour and a half and everybody’s mind is made up. One man who doesn’t know all the facts. Not that I do. You’re
not
going to live up to your oath as jurors if you fall prey to and allow yourself to conclude that Dianne Odell is a monster. You’re
not
going to live up to your oath as jurors if you permit demonizing a person to influence your ultimate determination.”

At first, the Court TV cameras had made some feel a bit uncomfortable, as if everyone were participating in some sort of human lab experiment. It wasn’t every day that trials in Sullivan County were videotaped for a national television audience. Nevertheless, Schick had a job to do, regardless of the public eye he now found himself in. He knew his opening was a building block for him to construct a reasonable-doubt defense and maybe persuade one juror that Odell hadn’t acted in concert with other, more infamous baby murderers.

Schick spoke with an admirable, articulate nature. He was smart—one could discern it from his choice of words. In the end, though, how far would it get him with a jury of diverse Americans? What hurt him right away was the fact that there were ten females on the jury—some of whom were likely mothers themselves. This was a fragile situation. Women who gave birth would have strong opinions regarding childbirth and death; there was no doubt about it.