While still in law school, in 1973, Lungen found a job in the Sullivan County District Attorney’s Office. One of his best friends was an assistant, part-time district attorney and had a law partnership with the district attorney. Lungen’s friend called him one day when he spied a vacancy in the DA’s office and told him he had spoken to the DA on his behalf, and just like that, Lungen found himself working in the DA’s office.
By June 1973, he graduated from law school. It was a good thing, he explained, because he now had a second mouth to feed, another son, Matthew. “I had from my military experience a really good understanding and appreciation of how to work with cops.”
From the moment Lungen began investigating bad guys and got involved in the prosecution side of the law, he “loved it.” So much so, he would often go out on drug raids with investigators to fulfill an urge for action and a hunger for hands-on knowledge. He wanted to know everything he could about the prosecutorial side of cases. He yearned to have that field experience to go along with what later would be part of his job of standing in front of juries discussing cases. He wanted to live his work, in other words. He didn’t want to talk to juries about experiences he had not been a part of himself.
Over the years, Lungen said, he became friends with many cops—some of those same cops would later end up working for him on cases. Paul Hans was one of those young cops Lungen struck up a friendship with early on when Lungen first joined the Sullivan County team of prosecutors. Hans was a state trooper. In June 2003, as Lungen prepared to bring the Odell matter in front of a grand jury, Hans was there by his side, working now as a special investigator for the Sullivan County District Attorney’s Office. Investigators like Paul Hans and his partner, Robert Rowan, who worked behind the scenes tracking down some of the more complex and ostensibly unreachable facts used during trial, were key players, Lungen said. This was done, of course, without soaking up any of the credit or glory that went along with high-profile murder cases.
CHAPTER 21
1
INDICTING A WOMAN suspected in the deaths of three of her children in relation to a grand jury proceeding might seem like an undertaking that should take weeks, if not months: witnesses, testimony, evidence. To present it all to an audience of twenty-three people and allow them to vote to indict or not, in theory, should be a process mimicking a trial. And indeed, some grand jury proceedings have taken years and involved dozens of witnesses and thousands of pages of documents and other evidence.
In the reality of justice, though, a grand jury is nothing like a trial. It is a one-sided presentation of the facts by a prosecutor who is, by moral and legal obligation, bound to present conflicting evidence but, in some states, also act as judge. It is almost a certainty that if one is brought before a grand jury—in most cases, the accused doesn’t even know a grand jury is meeting to discuss his or her fate—his or her fate has been sealed. Some prosecutors claim it is the people’s burden to present facts to see if, indeed, there is sufficient evidence to later present to a jury during trial, where the accused then has a chance to defend himself or herself. Arguably, a grand jury is the most efficient and adequate way to reach that goal. Yet, many defense lawyers claim a grand jury is akin to a public lynching.
In New York, in order to proceed with a trial by jury against a charge of murder, a felony, the people must proceed with a grand jury. It is the law. In Odell’s case, it took only a few days’ worth of testimony to convince a grand jury she should face trial. By June 25, a grand jury had indicted Odell on six counts of murder, two counts for each baby.
Lungen had presented witnesses in front of a secretly impaneled grand jury of twenty-three people who had sat and heard evidence against Odell. Based on that evidence and the law, they voted on whether a crime had been committed, by whom, and the charges Odell should face at trial. In short, the grand jury’s indictment was an accusation of felony murder: the case against Odell was headed to trial.
“They voted to indict Odell,” Lungen said, “on two theories of murder for each baby. One legal theory being intentional murder, and one legal theory being depraved-indifference murder.”
Essentially, what the grand jury had said with its decision amounted to quite a job for the people. Lungen would have to prove at trial that Odell “acted under circumstances [consisting of] depraved indifference to human life and recklessly created a grave risk of death and cause of death of another human being.”
Lungen added, “It’s a very high degree of reckless conduct by definition that requires a wanton disregard for human life.”
Odell, then, in the eyes of the grand jury, willfully and intentionally murdered her children and knew what she was doing at the time.
The case, however, was a bit different than most cases involving mothers who murder their children.
“In New York, you can’t be convicted of both a reckless and intentional crime,” Lungen said. “The jury has to make an election whether it’s intentional or reckless. In Odell’s case, based upon her conduct, it was one of those cases that could have gone either way, because it was my view that by the third baby”—which was actually the fourth baby, taking Baby Doe into account and understanding that Baby Doe wasn’t going to be part of the trial—“what started out maybe as unintentional, certainly became intentional by the end. If not, clearly under the circumstances which she became pregnant and birthed these babies—and I’m leaving in the middle of that, all the lack of prenatal care, hiding the pregnancies, staying at home, not divulging to anyone, et cetera, et cetera, et cetera—knowing under those circumstances that one baby died the first time, another baby, and another baby. Clearly, if she didn’t intentionally kill them, they died by circumstances evincing depraved indifference to human life, or a wanton disregard for those babies’ lives.”
With a textbook memory of the law, Lungen understood every intricacy regarding trial law and could spurt off legal definitions at will. Thus, in his view, it was clear that Odell, if nothing else, could have made sure those babies lived, no matter what the circumstances were, or whoever else was involved.
Simply put, she was responsible for their lives from the day she became pregnant.
“She never viewed these babies,” Lungen said, “to be babies, or people.”
Lungen believed his case hinged on an important, overlooked point, a taken-for-granted assumption—that the children were people. Because of their age, he was concerned the jury wouldn’t see them as babies. After all, he wouldn’t be presenting photographs of the children at Christmastime, at the beach, their first Little League game. Those photographs didn’t exist. The only pictures the jury would see consisted of bone fragments and X rays of skeletons, not to mention the leathery, mummified remains of one child. It was an honest, sincere question he had to ask himself going into trial: would the jury see the babies as human beings?
“Responsibility for death doesn’t change because one is an adult and one is a newborn. It’s murder—regardless!”
2
After the indictment, Odell was formally charged with six counts of murder. Stephan Schick went to see her with the bad news, an unfortunate part of being a defense attorney. “I am here to tell you that you’re going to be arraigned in court tomorrow,” Odell remembered Schick telling her, “and you’re being charged with six counts of murder.”
“Oh shit…what, are you crazy?” Odell said.
“No, the district attorney is going for intentional and depraved on each of the three counts.”
“Jesus Christ!”
“Well, we’ll just have to work with it from here.”
Schick’s reaction, Odell said, was quite composed, taking into account how serious the charges were. His demeanor struck her, she said, as if he didn’t care—that perhaps her life was just one more docket number on a conveyor belt of cases flooding through Legal Aid’s offices. It was one of the downsides poor people accused of crimes, who couldn’t afford their own attorneys, faced: having to deal with an attorn
ey who was likely overloaded with cases and didn’t have the time or the resources to dedicate to what would end up being a complex legal showdown, like Odell’s was shaping up to be.
“Schick already knows at this point,” Odell said, “that my mother was involved. I had said that to him and his comment was ‘It doesn’t really matter if your mother was there; it doesn’t make you any less guilty.’”
Schick, whether Odell agreed, had a valid point. A jury wouldn’t care. Odell was there. She could have done something. Questions that jurors might have included: Why didn’t she do anything? It had happened three times…she had living children in between…hadn’t she learned anything by the second or third baby?
Odell insisted Schick didn’t know then to what extent Mabel was involved, but there were other times when she had said he did know, that she had explained it to him the first few times they met in May after her arrest. It was one more incident between Odell and Schick that she would later recall differently.
“I had attempted to tell him several times, you know, initiate the conversation to explain about my mother, and he would go, ‘No, no, no!’ And he would throw up his hands and be like, ‘I don’t want to hear it! I don’t want to hear it!’”
“In the beginning,” Schick said, “she indicated she wanted to tell me more [about Mabel], but needed time to ‘be able to tell me things.’ We had plenty of time, mind you, for her to tell me things, to prepare for trial. I just didn’t write it off. It was extremely important.”
The problem Schick faced, he said, where Mabel was concerned—and he had discussed the issue several times with his colleague Tim Havas, who was working with him on the case—centered on Odell never telling the police about Mabel’s involvement in the babies’ deaths. This was the thorn in Odell’s current story. Odell had given a statement to the police that only implicated her. Mabel’s culpability in the deaths of the children was never broached.
“The police had her words on a tape recorder going into evidence,” Schick said. “So, the problem becomes not the Mabel thing, but how do you, with some degree of credibility before a jury, argue what she was saying about the Mabel thing to us, in comparison to what she told the police?”
Odell had never mentioned Mabel in her statements to police. In fact, Schick said, a second problem was that she had told the police the polar opposite: that she had to find a way to keep the pregnancies hidden from Mabel. Now, in Odell’s opinion, she was teetering on the notion of coming clean about everything. But it presented Schick with a legal dilemma, and at that point in the case, he was looking to win a manslaughter conviction and, with any luck, get her out of prison in a reasonable amount of time.
According to Odell, Schick had been receiving calls from Good Morning America and several other national-media outlets, asking if she was willing to appear on air to explain her side of the story.
“I can’t even eat a meal,” Odell claimed Schick ranted one afternoon, “because the phone is ringing off the hook with people who want to interview you. And I’m telling you that you should keep quiet.”
So, Odell said, she took Schick’s advice and didn’t say anything to anyone.
“If I had known what was going to happen, I would have spoken to everybody. I would have held a goddamn press conference!”
Odell’s recollection of those early meetings with Schick, and even later, when the case got close to trial, was again different from what Schick remembered.
“I went to see her more than I would any other client,” Schick said. “Mostly because the case was so important. The subject matter and the ultimate possible punishment were so important that I would obviously see her more than I would see someone charged with, say, DWI, or grand larceny. However, it’s been my overwhelming experience in twenty-seven years, or however long it’s been, that clients seldom believe that no matter how much time you spend with them, it’s never enough. I can understand. From their standpoint, having a lawyer come to see you is comforting.
“On the other hand,” Schick added, “most of the time when we go to see clients is a waste of time.”
At some point, there was an offer made. Odell said Schick came to her one day and told her Steve Lungen wanted to forgo trial if she would agree to a sentence of twenty-five years to life.
“What kind of offer is that?” Odell said she shot back at Schick after he approached her with the offer.
“No, you’re right. I think you should take it to trial.”
“Well, that’s what I intended to do, anyway.”
From the very beginning, Odell claimed, a trial by jury was her only focus. She wanted to sit in front of a jury of her peers and tell her side of the story—a story that now involved, of course, Mabel.
“That had been my decision from the beginning. Because, I’m thinking to myself, ‘Okay, they got me to sign this goddamn statement, pretty much saying whatever they wanted to say.’ But I figured, if they just got up and…umm, well, umm, and you see, this is my own naïveté, okay, I’m thinking to myself, ‘Well, if they (the police) just get up and tell the truth about what they did…then it’s going to be okay.’ The simple truth. That’s all I was expecting.”
But what was the “simple truth”? In Odell’s opinion, the police were telling a “twisted version” of it, a version that would get even muddier as the fall of 2003 emerged and the first hearings in the People of the State of New York v. Dianne Odell began.
For his part, Lungen later said he never made Schick a formal offer of twenty-five years to life. Again Schick couldn’t recall “an offer” in the same manner as Odell.
One more piece of hindsight Odell remembered differently.
3
With an indictment handed down, the next phase in the People of the State of New York v. Dianne Odell involved a series of what are called Huntley hearings. In simple terms, the process of a Huntley hearing—which could amount to several court appearances for the accused over a period of weeks—determines what type of evidence the district attorney’s office has against the accused, and through a series of motions filed by the defense, there’s a fight to try to get the charges dismissed. It was highly unlikely the charges against Odell would be dismissed. Still, Schick wanted to exhaust all of his options and, with a bit of luck, hopefully get a few key pieces of evidence omitted from trial. If the jury was allowed to hear testimony regarding the first baby, Baby Doe, it might spoil their capacity to review other evidence objectively. Odell was never prosecuted for the death of Baby Doe. Why should a jury be able to hear about it if it had nothing to do with the charges?
More important, the Huntley hearings were a way for Schick to get certain incriminating statements Odell had made to police suppressed, so they couldn’t be used against her during trial. The Huntley process was, essentially, set up for the defense to question police officers involved in the case and determine whether the statements they had taken from the accused were “coerced” or “obtained” involuntarily.
This was Odell’s big chance. She had been saying that Thomas Scileppi, Trooper Gerald Williams, and Investigator Robert Lane had forced her to say things about killing her babies she had never said—especially Scileppi. If that was true, the Huntley hearings would bear it out. And if Odell’s statements were thrown out—well, what did Lungen have left to prosecute? His case was being built around the premise of Odell saying she had heard the children cry. If he couldn’t prove the children were born alive, he couldn’t prove Odell had murdered them.
4
For the most part, Monticello, New York, is a tight-knit community of hardworking people who have lived in the region their entire lives. Many who live there believe there is justice and equality for the guilty and innocent. Ask someone in town about crime and punishment compared to the scales of justice and you will likely hear, “People get what they deserve.”
The Sullivan County Courthouse, where the Huntley hearings were about to get under way, sits perched high atop a sharp incline on the corner
of Broadway and Bushnell in downtown Monticello. Looking up at the courthouse from Broadway, tall, Colosseum-like, weather-beaten granite pillars welcome patrons to the Hamilton Odell Library. It is a neoclassic-style building, two stories high, with what looks like an archaic pewter-capped dome on the roof one might be more apt to see on a trip to downtown Rome. In the back of the building, next door to the Sullivan County Jail, is the entrance to the courthouse. Walk in and head downstairs and you’re on your way to Steve Lungen’s office, where he has run a flawless operation for nearly three decades. Walking in on the main floor, after making it through a series of metal detectors and rather large, professional wrestler-type men guarding the building, you head into the hub of justice in Sullivan County: the walnut-dressed courtrooms, as clean and well-kept as any hospital in the region, where supreme court justice Anthony T. Kane, county court judge Burton Ledina, Judge Mark M. Meddaugh, and the Honorable Judge Frank J. LaBuda, who was chosen to preside over the Odell matter, could all be found.
On August 19, 2003, a hearing had taken place to discuss the possibility of Lungen being able to present evidence during trial regarding Baby Doe. Odell had never been prosecuted in that case, but Lungen believed the incident showed a “pattern of behavior,” not to mention how the deaths of the three babies later on could not have been accidental. He had to elicit every potential scenario Stephan Schick might raise. Baby Doe was going to show jurors that Odell had been involved in the deaths of four babies, not three.
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