Diane Odell was a mother of eight living children when, in May 2003, the remains of three more of her children were found in Safford, Arizona. The three had been born at her home in Kauneonga Lake, in the town of Bethel in Sullivan County, New York, in the early 1980s. No one outside the house had known she was pregnant. The births were secret and unattended, the deaths were never reported, and she had carried the remains with her for years as her family moved from state to state.
She told investigators that each baby died shortly after it was born. Prosecutors said she suffocated them. In December 2003 a jury in Monticello, New York, convicted her of three counts of murder in the second degree under the depraved indifference theory, one count for each child, and in January 2004 Sullivan County Court Judge Frank J. LaBuda sentenced her to concurrent terms that ended in 25 years to life. The Appellate Division, Third Department, upheld the convictions in February 2006. At her sentencing she said again that she had not killed her children.
Little is known about her early years. In May 2003 the Associated Press described her as 49 years old and said that, even 20 years earlier, she had kept her private life to herself. Both of her parents were dead by then. Her father, according to the prosecution's papers described by the Sullivan County Court, had lived in Jamaica, Queens, and died about 1981.
In the early 1970s she shared an apartment in Kauneonga Lake with her mother. She later married, and three children from that marriage were born in 1978, 1979 and 1981. Five more children were born between 1986 and 1999 to her and her later partner, with whom she was living in 2003 and whom some news reports called her common-law husband. All eight of these children were born alive in hospitals and raised at home, the county court noted.
By the court's account she had lived in Sullivan County for long stretches and had children there. In January 1988 she moved from Bethel to Cohecton, another Sullivan County town. The Associated Press, interviewing neighbors in 2003, reported that the family moved often and that the children were tired of changing schools. A neighbor who often watched the children said she could not picture Odell doing anything maliciously, given how she was with her children; another, who had helped her find a job, described her as argumentative at work. Arizona authorities said she lived in Safford in 1991 and 1992, and a Graham County undersheriff told the Deseret Morning News that she had lived briefly in Pleasant View, in Weber County, Utah, in 1991. By 2003 the family was living in Rome, Pennsylvania.
The case that ended in 2003 had a forerunner. In early 1972, according to the prosecution's account set out by the county court, she delivered an apparently stillborn baby in the bathroom of the apartment she shared with her mother in Kauneonga Lake. She moved several times over the following years.
On March 14, 1989, the remains of that infant were found in Bethel, and investigators traced them to her. She was 35. Her accounts of the pregnancy changed. She first gave one explanation of how she had become pregnant; her later account, as the prosecution described it, was that her father beat her after he learned of the pregnancy and that she gave birth to a stillborn baby the following night. She told police in 2003, according to the New York State Police, that the 1972 baby was stillborn because her father had beaten her.
A pathologist in 1989 could not say whether the baby had been born alive or dead. The New York State Police closed the case for lack of evidence, and the Sullivan County District Attorney's office approved. The district attorney advised investigators at the time that his office could not disprove her explanation, and he said that in the interests of justice he would not pursue anyone else who had been involved. No charges were filed. Investigators questioned at least four of her relatives in 1989, District Attorney Stephen Lungen said in 2003, and none of them appeared to know about the three later children. The prosecution said she said nothing about those children when police interviewed her in 1989.
When the Arizona discovery came to light in 2003, police said the 1989 case was being reopened. It did not lead to a new charge.
The three children at the center of the prosecution were born at her home in Bethel between 1982 and 1985, according to the indictment as the county court described it; in its analysis the court gave the years as 1982, 1983 and 1984 or 1985. In 2003 the Graham County Attorney in Arizona, Kenneth Angle, gave the years of the births as 1981 to 1984, and one Associated Press report quoted her own account to investigators as covering four children who died between 1972 and 1984.
Prosecutors said she received no prenatal care and that each birth was secret and unattended. By her own statements to police, as the county court summarized them, each birth took place in the bathroom of her home, and each infant showed some sign of life. The court described the three babies as born outside any voluntary, lasting relationship, and she told investigators that the fathers were unknown and that she could not remember details of those relationships. Police in 2003 did not know who the fathers were.
"Nobody gave any indication whatsoever that she had been pregnant," Lungen said in May 2003, speaking of the years 1981 to 1983. The deaths were never reported to the authorities.
On May 12, 2003, the Graham County Sheriff's Office in Arizona was notified that the remains of three infants had been found in Safford. The Appellate Division later dated the authorities' discovery to May 14. Arizona authorities identified her through business records. A KSL News report from Utah said investigators did not yet know how the babies had died.
The Graham County Sheriff, Frank Hughes, said the three were among four children she said she had given birth to in New York. Arizona investigators followed the trail to Pennsylvania, where she was living with her partner and their children.
The interviews that followed became the main issue on appeal, and the Appellate Division set them out in detail. On May 17, 2003, she was called at work and asked to come to the Pennsylvania State Police barracks in Towanda. There she said she did not know anything about the dead babies or how they came to be where they were found, and she went back to work.
The next day her partner was at the barracks to give fingerprints and DNA samples and to take a polygraph examination. He testified later that he told police she wanted to speak with a lawyer before she talked to them. He then telephoned her, and she agreed to come in to be fingerprinted. When she arrived, Investigator Gerald Williams asked whether she would talk about the infants and whether she wanted a lawyer. She said she wanted to consult a lawyer about custody of one of her sons. Williams made sure that the request related only to her son, told her she did not have to speak with him and was free to leave. She then said she was willing to talk about the children who had died and did not want a lawyer for that.
Several more interviews followed over three days. On the Monday, the Associated Press reported, she drove to New York to be questioned there, and the last interview took place in the village of Liberty, in Sullivan County. When she became a suspect in New York, the Appellate Division found, she was properly advised of her rights and knowingly waived them.
She was arraigned in New York on three counts of murder and ordered held without bail. Her lawyer, Stephan Schick of the Sullivan Legal Aid Bureau, met her that week and declined to discuss her state of mind beyond saying, "You can imagine it's not good." New York State Police Major Alan Martin said investigators would talk to "family members, friends, anybody" who might know something, and that they planned to rebuild her movements since 1972. Her partner was also questioned.
A Sullivan County grand jury returned indictment 100-03. For each of the three infants it charged her with murder in the second degree on two theories under Section 125.25 of the New York Penal Law: intentionally causing the child's death, and causing it under circumstances evincing a depraved indifference to human life. Murder in the second degree is a class A felony, and the county court noted that New York sets no time limit for prosecuting a class A felony.
The prosecution's theory was that each death was a traumatic asphyxia, a suffocation, and that she concealed the pregnancies, the births and the remains. Dr. Michael Baden, a former chief medical examiner of New York City, was expected to testify for the prosecution that the deaths were homicides.
Judge LaBuda held a Huntley hearing on her statements to police and ruled that her extensive statements could be used if the prosecution offered them. The defense filed notice that it might offer psychiatric evidence, then withdrew the notice on the record after a psychiatric examination, and no psychiatric testimony was presented.
The main pretrial dispute concerned the 1972 infant. The prosecution asked to tell the jury about that birth and the 1989 discovery as part of its main case, arguing under the Molineux rule that the earlier events showed a common scheme or plan. On December 3, 2003, LaBuda refused. He found that the 1972 facts had some probative value, but that their prejudicial effect on the jury would be so overwhelming that no limiting instruction could cure it. He noted that no one alleged any crime in the 1972 birth or death, and that the prosecution had accepted an innocent explanation for it. If the prosecution believed that death was criminal, he wrote, it could seek to add a murder count. He left open the possibility that the evidence might come in later if the defense opened the door, or for cross-examination.
The prosecution asked him to reconsider. He heard oral argument and on December 8, 2003, denied the motion again, holding that the evidence would be highly prejudicial even with repeated limiting instructions. He also doubted that the 1989 remains amounted to a prior uncharged crime at all, though he assumed for argument's sake that they did.
The trial was held in December 2003 in Sullivan County Court in Monticello, and cameras were allowed in the courtroom. Prosecutors argued that she had hidden the remains to conceal crimes. In the words of a Tucson television report, prosecutors said she killed the babies because she did not want or need them.
The defense said the babies had died naturally. Schick told the jury that she delivered them alone at home because she was afraid to tell her mother she was pregnant. He called no witnesses. The jury heard a recording in which she described giving birth, passing out and waking to find the babies dead. "I think I should go to jail," she said on the recording.
The prosecution's forensic expert testified about the cause and manner of death, relying in part on what she had told police. In that testimony the expert called the deaths "homicides." The defense did not object at the time.
Near the end of the trial the defense asked the judge to let the jury consider criminally negligent homicide, a lesser offense. Her lawyer then said she did not want that charge if asking for it would give up her statute of limitations defense. The court ruled that requesting the charge would waive the defense. It refused to give the lesser charge.
The jury deliberated for about four hours and on December 16, 2003, found her guilty of murder in the second degree under the depraved indifference theory, one count for each child. She was 50. As she was led from the courtroom she spoke to her family. "Don't cry guys," she said. "Love you." Schick said he would appeal.
She returned to Judge LaBuda's courtroom for sentencing in January 2004, and the judgment was entered on January 27. He imposed indeterminate terms of 15 years to life, 20 years to life and 25 years to life, one for each count, to run concurrently. She again said she had not killed the children. "I hope one day that the truth will set me free," she said, according to the Associated Press, and she wept as she was taken from the courtroom.
Her appeal was decided by the Appellate Division, Third Department, on February 2, 2006, in an opinion by Justice Crew, with Presiding Justice Cardona and Justices Spain, Mugglin and Lahtinen concurring. The court affirmed the judgment.
Her main argument was that her statements should have been suppressed because she and her partner had told police she wanted a lawyer. The court disagreed. A request for counsel made outside custody, it said, does not bind police if it is equivocal, and her request had concerned a son's custody, not the investigation. Even if it had related to the investigation, it was made in a noncustodial setting and could be withdrawn, as she withdrew it. Her other statements were voluntary and made outside custody, and once she was a suspect in New York she was warned of her rights and waived them.
She also argued that televising the trial had harmed her. The court noted that no one had sought to block the cameras before the trial and that she had not shown the actual prejudice needed to overturn the verdict.
On the expert testimony, the court held that an expert may give conclusions that call for specialized knowledge and may rely on material of a kind experts in the field reasonably rely on, including the defendant's own statements. But it agreed that calling the deaths "homicides" improperly invaded the province of the jury. Because the defense had not objected, the issue was not preserved, and the court found the error harmless in any event: the expert had given a medical definition of homicide, disclaimed any legal conclusion and made no finding about who was responsible.
The court upheld the refusal to charge criminally negligent homicide, citing its earlier decision in People v Mills, because the request would have waived her statute of limitations defense. It found her remaining arguments without merit.
Cause of death. The prosecution's case was that the three babies were suffocated. Her account to police was that each one died soon after she delivered it alone. The jury's verdict rested on the depraved indifference theory, and the record does not include a conviction on the intentional murder counts.
The years of the births. The county court gave 1982 to 1985, and in one passage 1982, 1983 and 1984 or 1985. The Graham County Attorney gave 1981 to 1984, and an Associated Press report gave her own account of four infants who died between 1972 and 1984. A KSL News report put the four births between 1960 and 1984.
The date of discovery. The county court gave May 12, 2003, the day the Graham County Sheriff was notified; the Appellate Division gave May 14, the day authorities found the remains.
The 1972 infant. Her accounts of that pregnancy changed over time. The district attorney in 1989 said his office could not disprove her explanation, a pathologist could not say whether the baby was born alive, and in 2003 the trial judge noted that no crime was alleged. She was never charged over that death.
Early 1972: by the prosecution's account, she delivers an apparently stillborn baby in Kauneonga Lake.
1978 to 1981: three children born from her marriage.
About 1981: her father dies.
1982 to 1985: the three children named in the indictment are born at her home in Bethel and die (the years as the courts give them).
1986 to 1999: five children born to her and her later partner.
January 1988: she moves from Bethel to Cohecton.
March 14, 1989: the remains of the 1972 infant are found in Bethel; the State Police close the case without charges.
1991: she lives briefly in Pleasant View, Utah; she lives in Safford, Arizona, in 1991 and 1992.
May 12, 2003: the Graham County Sheriff is notified that the remains of three infants have been found in Safford.
May 17 to May 20, 2003: interviews in Towanda, Pennsylvania, and Liberty, New York; she is arraigned on three counts of murder and held without bail.
December 3 and 8, 2003: Judge LaBuda bars evidence of the 1972 infant from the prosecution's main case.
December 16, 2003: the jury convicts her of three counts of depraved indifference murder after about four hours.
January 27, 2004: sentenced to concurrent terms of 15, 20 and 25 years to life.
February 2, 2006: the Appellate Division, Third Department, affirms the judgment.