On Tuesday, September 23, 1986, a flock of newspaper and television reporters gathered on the third floor of the Onondaga County Courthouse, an eighty-year-old Beaux Arts building faced with Indiana limestone and once labeled Syracuse’s “Great Marble Palace of Justice.” The courthouse was filled with elaborate arches and original turn-of-the-century lighting fixtures, with marble floors and a central staircase framed on the lower floors by allegorical murals of legendary episodes from local history.
Judge William Burke, a slight man with a crown of white hair, took his seat in front of the four wooden pillars that were the backdrop of his court. Before him sat the defendant, Stephen Van Der Sluys, accused of smothering his second child, Heather. Next to Van Der Sluys was his court-appointed lawyer, Ed Menkin. At the prosecution table, Bill Fitzpatrick sat alone with his files. The jury box was empty.
Weeks before the trial, Menkin had decided that his client could not afford the risk of being judged by a jury of his peers. Regardless of the rules of evidence, he believed that twelve citizens wouldn’t take long to convict Stephen Van Der Sluys on his ramblings alone. A former English professor, Menkin was a trial attorney who made an art form of courtroom drama. But in this case he would go with the law. He would go with Judge Burke, a jurist he regarded as “the one judge in Syracuse who goes out of his way to respect and reward good lawyering”—a defense lawyer’s way of saying: He’s our guy. For what it was worth, Menkin was also sure he had a personal edge. Burke liked him, and the feeling was mutual.
The same could not be said of Fitzpatrick. Privately, he thought Burke was burned out, a judge who’d been around too long and tended to whine about his missed opportunities in local politics. And even publicly there had been some bad blood. The last time he’d tried a nonjury case before Burke, the judge had left his verdict in an envelope and gone to Long Island for the weekend. He was supposed to consider both murder and manslaughter, and Fitzpatrick was sure he had a winner on the lesser charge. But all the note inside the envelope said was “Not Guilty, Murder.” Nothing about manslaughter. Fitzpatrick tried to control himself when the reporters called. “It’s kind of ridiculous the way we got the verdict,” he told them. Burke didn’t speak to him for a year.
Fitzpatrick was approaching the opening of the trial with a renewed determination to win a murder conviction. In Saratoga County just weeks before, District Attorney Dave Wait had surprised him by making a deal with Van Der Sluys in the death of his third child. Fitzpatrick had thought the new autopsy on the perfectly preserved Vickie made Wait’s case much stronger than his. He’d even envisioned the possibility of a guilty verdict in Saratoga and then a plea in Onondaga, canceling a trial. But Wait had a different perception. He didn’t like the disjointed nature of Van Der Sluys’s confession—“he did it, he didn’t do it” was his reading. It was an old case, and Wait worried that the results of the new autopsy could be successfully disputed by a pathologist hired by the defense. Wait offered Manslaughter One, and Van Der Sluys took it. He’d get eight and a third to twenty-five years.
Fitzpatrick was annoyed by the plea bargain, but also invigorated: He resolved not to allow Van Der Sluys off without at least one murder conviction, and relished the arrival of his new star witness. Linda Norton, he realized, had given him a wonderful opportunity to sandbag the defense. Now he would use Erik Mitchell not as his key medical witness, but as a decoy. If Menkin was going with the law, Fitzpatrick was going right along with him. And it was going to be beautiful.
Shortly before 10:00, Fitzpatrick rose to deliver his opening statement. With no jury to play to, he offered a straightforward summary of the proof he intended to offer, then asked the judge to understand a few things about the issues at hand. He explained how easily a smothering could pass for Sudden Infant Death Syndrome, and asked Burke to disregard the words Dr. William Alsever, who had died the year before, had written on Heather’s original death certificate. SIDS is a hollow term, Fitzpatrick explained. It is not a cause of death—in fact, it means the absence of a cause of death. Had Van Der Sluys made his statements to the police at the time of Heather’s death, rather than eight years later, Fitzpatrick asserted, “there is no medical examiner in the world who would have signed that death certificate as SIDS.”
Then, Fitzpatrick laid his trap. There would be testimony from Dr. Erik Mitchell, he told Burke. And Mitchell, “if allowed to look at the total picture,” would offer his opinion of the death of Heather Van Der Sluys. It was an ostensible reference to the legal question of whether Burke would permit Mitchell to offer an opinion based on circumstance rather than on physical observation. But, in fact, the prosecutor himself had no intention of allowing Mitchell to look at “the total picture” or to give his opinion of the cause of death. He would ask him three or four innocuous questions and send him on his way. By that time, Linda Norton would have already testified that there was no doubt in the world that Heather had been smothered.
Menkin missed the ruse. He was so eager to rip into Mitchell that he heard Fitzpatrick’s words in the context of his own plans to co-opt the medical examiner’s testimony. Still, he knew he would have to deal with the doctor from Texas. She had come out of nowhere, a virtual mystery witness, and Menkin had tried without success to persuade Burke to exclude her on the grounds of unfair surprise: He’d only been informed of her existence forty-eight hours before trial. If there was only one thing he knew about Norton, it was that she wasn’t coming fifteen hundred miles to say she was pretty sure Heather had been murdered.
Fitzpatrick began presenting his case. He entered his exhibits—the confession, the insurance policies. He called his witnesses. Dr. Robert Chavkin, the pediatrician, who testified that Heather was a fine little baby. The police officer who responded to the emergency call the night she died. The insurance brokers who’d sold policies on three babies. The detectives who recounted how Van Der Sluys had come to confess that day in September—and how, during another series of interviews a month later, they couldn’t get him to stop talking. At one point, one investigator testified, Van Der Sluys had actually blocked the door of the holding cell to keep him from leaving.
And there was Jane Van Der Sluys. As Fitzpatrick expected, she proved to be an innocent, sympathetic figure. Her gentle manner helped underscore her victimization—and, he hoped, her husband’s guilt.
“And, Jane, who lives with you?” Fitzpatrick asked early in her testimony.
“My son Heath … or, excuse me … I’m sorry.”
“That’s all right,” Fitzpatrick said. He couldn’t have scripted it better. “You take as much time as you want.”
“My son Shane, my daughter Jennifer, and my baby Corey.”
She recalled the incidental details of life the decade before; her testimony matter-of-fact, unaffected by any discernible attitude. Occasionally she would say something curious about her husband in passing. “He liked sleeping with a baby pillow,” she said at one point, “versus a large standard-sized pillow.” She steeled herself for the moment when she would have to go back to the night of January 7, 1977.
“What do you observe when you go to check on Heather?” Fitzpatrick asked.
“That she was laying on her stomach. And I picked her up because I wanted to see her face”—her voice broke and she dabbed her eyes—“so I picked her up and that’s when I knew that she had died.”
Finally, Fitzpatrick asked her about her three living children. “To clear up the matter: Is there any insurance on those three children?”
“Not that I know of,” Jane said.
Cross-examination was where Ed Menkin hoped to win his case. The law said he was not obliged to call a single witness, and he intended to exercise that option. He had nobody strong, least of all the defendant himself. Instead, he would pound away at Fitzpatrick’s twelve witnesses, attack the cops and the confession with both a sledgehammer and a chisel, and play for reasonable doubt. He hoped that Burke would insist on a high level of corroboration and conclude that the prosecution hadn’t proven its case.
Menkin could play tough with the others but he had to be careful with Jane. He couldn’t beat up on her.
“Do you recall how much rent you paid?” he asked her early in his questioning.
“A hundred fifty a month.”
“Did that include utilities?”
“No, I don’t think so.”
From his seat in the gallery, Jim Bowers wondered where Menkin was going with this. He couldn’t imagine what the rent had to do with his murdered grandchildren. Bowers was there not to judge Stephen Van Der Sluys, for he had done that long before. He was there on behalf of his daughter. He wanted his son-in-law to know it.
“Was there a thermostat in the apartment?” Menkin asked Jane.
“Yes, there was.”
“What kind of heat was there?”
“I think it was gas.”
“Forced air?”
“Uh-huh.”
Menkin turned to the cleaning business. “Did you use ammonia?”
“Yeah.”
“Did you use salicylic acid to take off rust?”
“I don’t recall any.”
“What about oxalic acid?”
“I don’t know.”
“And is it also a fact that after you moved into the flat on Bryant Avenue, you did some painting?”
“All right. Now, Mrs. Van Der Sluys, up till just a couple minutes ago, did anybody ever ask you about the presence of chemicals in your home?”
“I’ll have to say no.”
“Did anyone ever ask you about the paint that was used in your home?”
“No.”
“I know this is difficult enough for you, but I hope you don’t take this as too personal a question.… Did you have a permanent at that time?”
“No.”
“You did not? You’re sure about that?”
“Yes, I’m positive.”
“So you didn’t use any chemicals on your hair?”
The broad implication, of course, was that sudden infant death was so mysterious that who knew why it happened? And that the police hadn’t checked into whether Heather could have been accidentally poisoned by chemicals wafting from the storage room or from Jane’s hair into Heather’s crib. Menkin kept at it. Was there a fireplace in the apartment? Didn’t Heather have a lot of colds? Wasn’t she born with her umbilical cord wrapped around her neck? Did you participate in a SIDS study? Were you a member of a SIDS support group? Didn’t you have a lot of trouble rousing Heather from her nap an hour before she died? Do you recall falling down some stairs while she was in your arms? Didn’t Dr. Brooks in Rochester have Shane on an apnea monitor?
“Mrs. Van Der Sluys, did you have any illnesses during your pregnancy?” Menkin asked.
“I know at the beginning of each pregnancy I would be nauseated,” Jane answered innocently, trying to be cooperative. “I would have nausea, and I would also get a severe cold. Whenever I got a cold, it was severe. Now, I’m generalizing saying that because of the number of pregnancies I’ve had, that’s held true with each one, so I would have to say yes, I had some sickness during my pregnancy.”
Jim Bowers had to hand it to Menkin. The guy was trying everything. Every so often, Bowers looked at his son-in-law with a steely gaze. He hoped Steve noticed.
Linda Norton arrived in Syracuse late Wednesday afternoon. She strode briskly off the jetway at Syracuse-Hancock International Airport, a purposeful woman in her early forties with short, dark hair—almost a John Lennon cut—round-rimmed glasses, and a knowing, mischievous smile. She was quick, direct, divorced—a mother of two whose drolly effervescent manner was perhaps partly a result of spending her days with dead bodies and her nights with teenage girls.
Beth Van Doren met Norton at the gate and drove her into town. She got her checked into the Hotel Syracuse, then brought her up to the office to meet Fitzpatrick, who was just back from court. Dr. Chavkin had testified in the afternoon, and the reporters decided that the news of the day was that the pediatrician said he was “uncomfortable” with Heather’s SIDS diagnosis because her brother had died “under circumstances that were somewhat unexplainable.” For Fitzpatrick it was a perfect setup for Norton. She would lead off Thursday morning.
For now, though, she was hungry. “How about we eat, then get to work?” she suggested after a few pleasantries. She didn’t work well on an empty stomach.
“Well, I’d prefer to work first and then eat, if that’s okay,” Fitzpatrick said. He didn’t eat well on a trial stomach.
Uh-oh, Van Doren thought. Then, a compromise. They’d bring some sandwiches up from the cafeteria, hunker down, then go out for a late dinner. They moved into the conference room next to Hennessy’s office. What unfolded there was a little dance that struck Van Doren as something like the sight of two cats staking out their territory. On one side there was Fitzpatrick, an abundantly confident prosecutor who knew what he wanted from his witness and how he intended to get it. On the other side was Norton, an expert with an unambiguous point of view who knew what she wanted to say and, one suspected, favored prosecutors who knew how to act the straight man.
Norton was a seasoned expert witness who testified in all kinds of cases, not all of which involved children. She had first become drawn to child abuse because she saw it as a stark clash of good and evil, but she found it necessary to step back from the fray at regular intervals. She knew that the only way she could specialize in murdered and assaulted children was to erect an emotional wall—“it’s a kind of denial,” she observed—and that if she did too many of these cases without the distraction of something “extraordinarily boring,” the wall would begin to crumble and she would start to feel pain. At that point, it was time to take on a product liability case, or maybe an autopsy review for a family looking for a second opinion before they sued somebody for millions.
It was in the courtroom that Norton felt she did some of her most important work. While she made her professional judgments and diagnoses objectively, on the subject of child abuse Norton was in some sense testifying as an advocate. She viewed the relationship between trial attorney and expert witness as a delicate alliance. She didn’t like prosecutors who brought her in and said, “Well, what should I ask you?” but it was also true that nothing disturbed her more than leaving the witness stand without getting her points across because the questioning was so poor. So she’d developed a few guidelines for the lawyers who hired her: “Don’t keep me up there more than an hour. Get to the important stuff in the first thirty minutes—after that the jurors start thinking about what they’re going to cook for dinner. Keep my qualifying credentials brief. Zip through ’em. And most important: Give me as much leeway as possible. Ask a very broad question and allow me to talk as if I were giving a lecture on child abuse for a bunch of DSS caseworkers.”
Fitzpatrick liked the idea of stepping aside and allowing Norton to take Judge Burke into her realm, to educate him about the broad and subtle aspects of SIDS and smothering. He wanted it to build to what he regarded as the pivotal moment of the whole trial: when he would ask Norton for her medical opinion about the cause of Heather’s death. All he needed was for Burke to allow himself to hear Norton’s answer. Menkin had filed a brief arguing that, Norton’s credentials notwithstanding, she had no way of knowing, based on a pile of papers and some tissue slides, how Heather had really died—in legal terms, that she was not competent to answer that particular question.
In Norton’s view—and she considered this a basic tenet of her work, her personal catechism—she was not just a pathologist, but a “death investigator.” As such, she based her judgments on every piece of evidence and information available, not just on what she saw on the autopsy table. “It’s entirely appropriate, in fact I think it would be inappropriate to sit up there on the witness stand and say, ‘I don’t know what the cause of death is’ because I’m going to pretend that I don’t know any of the rest of the stuff. I’m sure you can find forensic pathologists who really do believe that their limited role is to crawl around in the morgue and sop up dead bodies and report on what they find. We call these ‘chop shops.’ If you’re trained in a chop shop you might feel that’s your role because you were stuck down in a morgue someplace and you processed bodies all day long and you were never asked to render an opinion about anything. You’d just report what you found in the body and move it on because you’ve got twelve more that you’ve got to process that day.”
While all forensic pathologists are called upon to consider circumstances in investigating the typical violent homicide, generally these are physical circumstances—angles of knife wounds, gunshot characteristics, the presence of poison. With the smothering of a baby, medical examiners like Norton rely on factors that are much less tangible. Which is why with Norton, Fitzpatrick was on tricky legal ground. Burke was no pro-prosecution judge. If he ruled for the defense, Fitzpatrick thought, that could be the case.
They began the dance. Fitzpatrick told Norton that he wanted to focus on her expertise in pediatric pathology, and how she came to specialize in child abuse and SIDS. “I want the judge to know you did all the autopsies on the kids in Dallas,” he said. “I’ll ask you to talk about some basic principles and define some terms.”
“Okay, now the important thing there is that SIDS is basically a waste-basket term,” Norton said. “It’s only appropriate when there’s a complete autopsy and you can’t find any anatomic cause of death. If you find viral pneumonia or meningitis or something, that’s not SIDS. A lot of medical examiners, especially where you have a coroner system, instead of doing an autopsy, they’ll just put down SIDS for basically any death of a child. I also want to make the point that I’ve had cases, not many, but a few cases that I signed out as SIDS and then later changed the death certificate when further investigation showed it was something else. Either another natural cause, or a homicide. I mean, death certificates are not carved in stone.”
This was important, Fitzpatrick thought. He wanted to establish that Dr. Alsever had called Heather’s death a SIDS only because he had nothing else to go on at the time. He didn’t have Vickie’s death, and he didn’t have Van Der Sluys’s statements. But it didn’t mean he was right.
“Heather was a couple of months old, and that’s right at the start of the high-risk period,” Norton said. “With the fifteen-month-old, though, whoever called that SIDS was just out to lunch, but it’s not like it hasn’t happened before. I’ve seen a lot of people that don’t use the standard cutoff of nine months. I’ve actually seen a death certificate where a four-year-old was put down as SIDS. But it’s amazing that the doctors and the police let this happen. They really screwed up. It’s just so obvious what was going on here with the insurance.”
“Well, I’m not sure it’s just that,” Fitzpatrick said. “I think he did it to be alone with his wife.”
“Nah, it’s the insurance money, that’s all.”
“Whatever it is, this is one I’d go for the death penalty if we had it in this state. I’m not a big death penalty guy, but this is one I’d pull the switch myself.”
“It’s not usually so cold and simple as this one. A lot of these cases involve this really strange thing called Munchausen syndrome by proxy.” Fitzpatrick asked what the hell that was. “It’s when a parent deliberately makes a child sick to attract attention. Or kills. There are some cases in the literature of multiple SIDS deaths that I’m sure are actually homicides, and if you looked at them, you’d probably find this kind of behavior.”
Fitzpatrick didn’t want to bring up some psychiatric syndrome to explain Van Der Sluys’s crime—beyond the insurance, his true motive didn’t much matter to the prosecutor’s case—but the concept of a parent causing breathing distress struck a chord. He could use it to address the incident with Heather the week before she died.
“Now, talking about multiple SIDS, are there a lot of cases? I mean, that’s one of the big things I want to get into with you. And the defense attorney is going to bring this up too. Whether SIDS can be hereditary.”
“It’s not. If you have more than one in a family, I get uncomfortable. I mean, I get real antsy with that. And if it’s more than two, to me that’s pointing right at homicide. Now, a lot of people think there is a genetic factor, because of some so-called anecdotal evidence by a few people in medicine who don’t know what they’re looking at. But all the reliable studies show there’s no genetic link. But you’re right. He’s going to bring it up. They always do.”
“So you’ll explain that it’s not hereditary, and get into some of the theories about SIDS. The possible causes and so forth.” He wanted the judge to see that Norton really knew what she was talking about—that the opinion she was about to give was informed. Fitzpatrick also knew Menkin would spend a lot of time in this area on cross-examination. If he was throwing out things like paint fumes and cleaning chemicals, he could imagine what Menkin would do with published theories of SIDS.
“Here’s where you want to just let me give a lecture,” Norton said. “I’ll talk mostly about the apnea theory because this is what they’re going to try to cram down your throat: that babies have these periodic cessations of breathing and sometimes if these periods become prolonged the child stops breathing altogether and dies. And a good part of the medical community accepts this theory, even though there’s been no proof offered.”
“You think this’ll be their defense?”
“It’s the defense in cases like this. It’s apnea. It’s SIDS. It runs in families. And here they have the supposed event the week before the baby died. But it’s garbage. In fact, the paper that started this whole theory was actually a case of homicide that’s always been called SIDS. I’ve cited this case for years. I talk about it whenever I give a talk to district attorneys or medical examiners. Because it’s always being used by defense attorneys in cases like this. They’ll say—”
Norton stopped herself abruptly. “Wait a second.”
Fitzpatrick and Van Doren looked on blankly as Norton’s face lit up in astonishment.
“My God,” she said. “I can’t believe this. The paper I’m talking about is by this guy named Steinschneider. And he’s from right here in Syracuse. The guy they’re gonna eat you with is from right in your own backyard. You think Van Der Sluys is bad? You think you guys fumbled the ball on this one? You should see what you did fifteen years ago.”
Fitzpatrick and Van Doren were utterly perplexed. He was a college freshman fifteen years earlier. She was in junior high school.
“Well,” Norton said, “you might have a serial killer right here in Syracuse.”
Fitzpatrick’s eyes widened.
“Okay. There’s this paper by this Dr. Steinschneider at your university medical center here. I’m going back now to the early seventies. He’s got two very young babies in his so-called study who are brother and sister. And they spend most of their lives in his lab in the hospital. The first baby keeps getting discharged and then rushed back with these supposed attacks of apnea. Finally, she dies—the day after she goes home. She’s a few months old. And the exact same thing happens to that baby’s later sibling. Dies the day after going home. And they have three other siblings who’ve also died. So that’s five dead babies in this family.”
“Five in one family?” Fitzpatrick said. Van Doren remembered reading something about this in Norton’s “Child Abuse” article. It had also come up during their first phone conversation, though Norton hadn’t said anything about Syracuse.
“Five,” Norton repeated. “And Steinschneider writes this idiotic paper in Pediatrics, which is a very respected journal. And he says the two babies that he studied had spells of prolonged apnea before they died. And so therefore the implication is that apnea causes SIDS and SIDS is familial. He puts in all these charts and graphs that are just meaningless. It’s always been clear to me that all these babies were smothered, probably by their mother because she seems to be the one reporting the incidents. But out of this came this big theory, and this whole huge business of apnea monitoring. He started it. Steinschneider was really the father of the notion that SIDS deaths can occur repeatedly in the same family, and in fact he’s built an entire theory of Sudden Infant Death Syndrome on homicides. And that woman’s from right here in Syracuse.”
Fitzpatrick was gripped. “Did he give her name?” he asked.
“No, this was a research article,” Norton said. “He used the babies’ initials.”
How could this be? Fitzpatrick wondered. How could a doctor pass off five homicides as natural deaths in a prestigious professional publication without people picking up on it? It just didn’t make sense.
Norton brushed him off. “You’d be amazed. A lot of people are just ignorant and naïve. They believe what they want to believe. And they don’t want to believe that a mother could possibly do something like this to her child.” Norton suggested Fitzpatrick read the article for himself; he’d see what she meant. Fitzpatrick jotted some notes: Steinschneider … Pediatrics … early seventies.
Norton was surprised to see how electrified Fitzpatrick seemed by the possibilities. It wasn’t her intention. She wasn’t bringing this up because she expected him to do something about it. That didn’t even occur to her. She wasn’t here to report murder. This had always been an anonymous case from the literature, an object lesson, almost a prop in a crusade. Who these babies were, who their mother was, had never mattered to her as much as what they represented: not just a case of undiagnosed homicide, but the classic one—ground zero of the apnea theory, with all its misguided implications about recurring familial SIDS and the baby-monitoring industry that grew out of it. Now, suddenly, Norton found herself sitting less than a mile from the hospital where these babies lived their brief lives and across a conference table from a man who seemed to want to actually do something about it. Well, that was not going to happen, of course. Fitzpatrick might be excited now, but he’d get over it. He was just a nice young A.D.A. prosecuting some horrible bastard for murder.
I’ve got to stay focused, Fitzpatrick thought. I’ve got a trial here. Is this woman still in Syracuse? I’ve got to win this case. Did she have more kids? Tomorrow was getting close. The sun was long gone; the district attorney’s office was all bright lights and empty desks.
“Your choice,” Fitzpatrick said when the work was done.
“Italian,” Norton said.
“What’s open this late?” Fitzpatrick asked his research assistant.
“Grimaldi’s,” said Beth Van Doren.