For the first time in its august 115-year history, Science, the journal of the American Association for the Advancement of Science, was covering a murder trial. Among the press corps recording the testimony at the Tioga County Courthouse was Ginger Pinholster, the writer whose first article about the case had appeared in the journal the previous spring.
In the wake of Waneta Hoyt’s arrest, Steinschneider had given Pinholster an interview, expecting that Science would be the one place he might find sympathy and support. The AAAS was his culture, the magazine its scripture. She was the one reporter he seemed eager to talk to about the Hoyt affair, confident she would tell his story. But to his bitter disappointment he had found no ally in the weekly journal. “If the murder charge is upheld,” Pinholster’s story had observed, “it would demolish Steinschneider’s theory that this family’s tragedy suggests a link between SIDS and severe apneic episodes caused by an abnormality present at birth.… And it would raise a troubling question: Could Steinschneider have prevented the deaths of two of the Hoyt children?”
Pinholster was among those awaiting Steinschneider’s appearance on the witness stand as the defense prepared to begin its case. Another was Gail Pfeiffer, who was anxious to lay eyes on the man whose name was all over Noah Hoyt’s chart, but whom she never remembered seeing on the ward—the “phantom doctor,” as she had called him, ensconced upstairs with his research. Since testifying, she had searched her memory for a fuller picture of the fear on 4A—of what might have been done to prevent Molly and Noah from dying. She remembered the talk had been discreet, but wondered what might have been said that she’d not heard. “That’s why I want to call Julie,” Gail said. “I want to ask her, ‘Julie, did we ever dare verbalize it?’ ” When she heard that Julie Evans had indeed warned Steinschneider, Gail said, “Well, he needs to be in the hot seat then.” She decided she would skip school and return to Owego early Monday morning to see it.
On Sunday afternoon, Miller and Urbanski drove to the Elmira airport to meet Steinschneider and his wife. Descending the steps of their plane from Atlanta, the Steinschneiders looked as though they would rather be anyplace else.
“You know, I’m just here for him, to hold him together,” Roz confided to Urbanski soon after their arrival.
“He looks okay,” Urbanski replied.
“Yeah, well, he’s putting up a good front.”
They struck Urbanski as a remarkably devoted couple, and he was moved by their predicament. “Here’s Al, who I’m sure is a decent guy and a dedicated doctor,” he said later. “And he writes this article back then. I mean, you can lose the forest for the trees sometimes. You’re involved in researching a problem and legitimately trying to find an answer, and if a little bit of fame and glory comes with some breakthrough, that’s nice, too. And here’s this wonderful opportunity he has where this woman comes in right from his own backyard, and it just never dawns on him that she may be snuffing these kids. You lose peripheral vision. You never had that happen? I have. And now, put yourself in his position. You’ve got this wild woman Norton down there, saying this isn’t a trial of Waneta Hoyt—you’re the one who should be standing trial.”
Steinschneider wondered if that was just what the prosecutors in New York had in mind. He told Miller and Urbanski about his phone conversation with Simpson a month before. He had cut it off when he realized Simpson was taping the call, he said. He worried that it meant Simpson and Fitzpatrick might be hatching a plan to indict him as some sort of accomplice. The defense lawyers assured Steinschneider he had committed no crime; Simpson was just taping the call to help him prepare his cross-examination. They got Steinschneider checked into the Elmira Holiday Inn, then brought him to Urbanski’s office, where they spent the rest of the afternoon getting ready for Monday morning. It was during those hours that Steinschneider read Waneta Hoyt’s written confession for the first time. When he finished the third page, he put the paper down and looked up. “Chilling,” he said.
The next morning, Urbanski picked up the Steinschneiders and drove them to Owego in his Chevy Suburban, talking about everything but the case as they went. They crossed the river at the Court Street Bridge and parked among the television minivans alongside the courthouse. Steinschneider emerged confidently. He marched briskly up the limestone steps, giving no appearance of a man who wished he were anyplace else. He and Urbanski chatted affably as they made their way up to the courtroom.
They were early for the day’s proceedings, so Steinschneider, Roz beside him, took an inconspicuous aisle seat in the gallery’s fifth row. He surveyed the baronial courtroom and the spectators and reporters who were milling around, waiting for the first witness for the defense to be called. A few minutes later, Waneta and Tim came down the center aisle, moving toward the rear conference room they used as a lounge. Seeing the Hoyts approach, Steinschneider stood abruptly in awkward deference. It was twenty-four years later, and here they were, once the young mother from the distant hills and the ambitious doctor with an idea, crossing paths one more time. Steinschneider had come to help defend her, but it was also true that none of this would be happening but for the paper he had written. He bowed slightly, and Waneta returned the uneasy gesture with a polite nod, passing without a pause. Not a word was exchanged.
The defense calls Dr. Alfred Steinschneider. He rose and came down the center aisle. The jurors and spectators watched a grandfatherly man in a tweed jacket and tie take the witness’s oath and climb to his seat, ready for the chore at hand. It was a climactic moment in the thirty-year history of this case, but nothing about Steinschneider’s bearing betrayed a recognition of this. Pulled back to the time and place of his seminal triumph, about to confront the long-overlooked discrepancies and unasked questions of his famous paper, he assumed the role of the innocent bystander.
Asked by Miller to tell the jury about his background, Steinschneider delivered the obligatory details in relaxed and folksy fashion: “… Went on to Cornell University in beautiful Ithaca and got my Ph.D. in 1955 …” When Sgueglia broke in to ask him to speak up, Steinschneider listened eagerly. “Doctor, you have a beautiful, soothing voice—I’m sure your patients love it,” the judge said with a benevolent smile. “But I’m having trouble hearing you in this courtroom. I’d like you to shout it out.” Sgueglia pointed to one of the court bailiffs sitting beyond the jury box and asked Steinschneider to direct his voice at her. Steinschneider followed the judge’s finger, taking care to be sure he was looking at the right woman, then said, “Okay—you got a deal.” It was easy to imagine him as something he had never been, a kindly neighborhood pediatrician surrounded by jars of tongue depressors and lollipops.
Seeking to certify him instead as a world-class SIDS researcher, Miller led Steinschneider on an oral history of his life’s work. He started back in his days when he was studying the autonomic nervous system with Earle Lipton, then moved on to the pivotal 1969 meeting near Seattle where SIDS was named and his world changed. “And as a result of that conference,” Miller asked, “did you return to Upstate Medical Center and undertake a more directed scheme of research in regard to SIDS?”
“It certainly piqued my interest,” Steinschneider replied. “Keep in mind that I’m a teacher, and I was also a researcher. And it always intrigued me that for research to progress, for learning to take place, one had to recognize one’s own ignorance, if you will. What intrigued me was the pathologists who were at that meeting who owned up to the fact that they in fact did not know why these babies were dying.… And that rather than attribute it to some theory of theirs, what they thought it might be, they said: Wouldn’t it be wiser, wouldn’t it be smarter, wouldn’t it be more honest to say we don’t know why they’re dying? So part of what intrigued me was the intellectual honesty of the individuals who were there. And the other was that when I spoke, and I felt like a novice at this meeting, my comments were not felt to be totally ridiculous. And so I decided to go back and see what I could find out.”
For the moment, Miller skipped past what Steinschneider found out. He asked him to talk about the major SIDS program he had launched at the University of Maryland and to explain what he did as founder and president of the American SIDS Institute. He asked him if he’d been a consultant to the National Institutes of Health; if he’d been given federal grants to study SIDS and apnea, SIDS and race, SIDS and migration, SIDS and subsequent siblings; if he had sixty-eight publications to his credit on “the very issue that we’re talking about here this morning—the investigation and academic research involving the subject of how to explain death in children”; asked him if he had been “treating children and babies within the context of his clinical research his entire professional life,” right up until this very day. Yes, Steinschneider said—this was all true. He had devoted his life to studying the deaths of babies.
“Dr. Steinschneider,” Miller said now, “in 1971, while you were at Upstate Medical Center, you undertook care for two patients, babies, Molly and Noah Hoyt. Is that correct?”
“Yes,” Steinschneider said, affirming for the record, for the first time, that Molly and Noah were the H. babies. Molly had come to him first, he said, because of episodes at home in which she had stopped breathing and turned blue.
“Tell me what happened when they were admitted,” Miller asked.
“They came in and they were followed in the research unit and we attached an apnea monitor to them.… Because of the report that Molly was having these recurring episodes, then medically it was necessary to follow that baby very closely on the ward just in case a similar episode would occur. And then we attempted to determine why the episodes were occurring.”
“And were there subsequent occurrences in the hospital?”
“The nurses reported to me and in the chart that Molly had a number of episodes where the alarm would go off, and on occasion they felt the need to stimulate the baby.”
“Were there histories of apneic incidents in the hospital in regard to Noah?”
“Yes.”
“Of the same nature as you described in Molly?”
“Reported episodes by the nurses.”
In the balcony, Gail Pfeiffer pursed her lips.
“There’s been another assertion here, by certain witnesses that have testified, that there was never a reported incident of an apneic incident or of difficulty in breathing or of cyanosis, other than by the mother. Does your history and your recollection and your treatment of these children verify that assertion?”
“What I can say is that nurses reported episodes, alarms. They reported that the equipment was functioning, and on occasion they reported that they had to stimulate the baby.”
“Is this type of research still done today, using monitors to measure for apnea?”
“Monitors are in common use clinically in the management of babies who are known to be at increased risk to die of SIDS. In the United States today, it’s been estimated that there are close to forty thousand babies sent home on alarm systems.”
Miller moved into the babies’ family history, but only a piece of it. He asked Steinschneider about the circumstances originally attributed to Julie’s death. Was it true that babies couldn’t die as the result of a feeding? No, said Steinschneider. “We see babies literally every month that get referred to the institute because they have severe episodes, where they become cyanotic, stop breathing, literally pass out. They seem to require resuscitative intervention and this occurs in association with feeding. In fact, that meeting I attended in 1969, one of the few slides I had to present was a slide of a baby who did just that.… Babies can overreact. And they literally can die.”
Miller steered clear of any discussion of Jimmy. Instead he embarked on a line of questioning about SIDS as the death of an apparently healthy baby, a launching point for Steinschneider to present a lengthy homily on his theory of the “subtle chronic abnormality.” Then Miller asked about the recurrence of SIDS. Were there reports in the literature of more than two children dying in one family of unexplained causes? Yes, said Steinschneider.
“Doctor,” Miller said, “based on the medical evidence as far as the records of their hospitalization in Syracuse, the treatment that you rendered, the autopsies that were done, and the family histories that were provided … is there any medical evidence in this case to your knowledge to corroborate, independently corroborate, the statement of Mrs. Hoyt that she smothered these children?”
Steinschneider paused dramatically. “No,” he said after a long moment of thought.
“You don’t know whether she did or not, do you?” Miller came back, apparently hoping the question would give Steinschneider the appearance of objectivity.
“No.”
“But there’s no medical evidence to corroborate her saying she did,” Miller added hastily.
Sgueglia cut in. “He’s already answered that,” the judge said, ending Miller’s direct examination with a thud.
“I can’t believe they brought him all the way up for that,” Simpson remarked to Peggy Drake at the break, closing the door to their meeting room behind him. Miller had directed the bulk of Steinschneider’s testimony at abstractions and hypothetical designed to cast doubt on Simpson’s medical corroborators, and less at Steinschneider’s direct experience with the Hoyt children. But he opened the door to the records of Molly and Noah just wide enough to give Simpson plenty to work with on cross-examination—and to show that as an expert witness, Steinschneider was anything but disinterested. Simpson had come primed for battle. He hadn’t forgotten that heated phone call the month before, when Steinschneider accused him of deceit and of knowingly prosecuting an innocent woman. He planned to show which of them was the deceptive one. “Should I ask him about our conversation?” Simpson asked Drake. “Or are they waiting for me to ask and walk into a trap?” Nothing to be gained there, Drake thought. “Ask him where he got the family history,” she said, figuring it would emphasize that it all came from Waneta. Simpson pondered that a moment. “Do I want to ask him that? I don’t want to get into that and let him waffle on it.” He had something else in mind.
“Dr. Steinschneider, my name is Bob Simpson, I’m the district attorney here in Tioga County,” he was saying a few minutes later, “and you and I have spoken before, is that correct?”
“That’s correct,” Steinschneider said guardedly, completing the coded exchange that opened Round 2 of their private antipathy.
With an edge the jurors hadn’t seen before, Simpson questioned Steinschneider closely, sometimes acerbically, on how he had prepared for this day—whom he had talked to, what documents he had reviewed—before launching an all-out assault on his assertions about his studies of Molly and Noah Hoyt. “Now you have testified that in connection with the incidences of apnea and cyanosis, you relied somewhat on what the nurses at Upstate told you with respect to Molly and Noah. Did you also review the medical records on a daily basis for Molly and Noah when you were up there in your clinic?”
“As best as I can recollect, I reviewed them and I discussed it with the nurses.”
“And so, when you come into court today and you testify in front of this jury that you were basing your evidence of apnea on the statements of the nurses, are you referring to their oral statements to you or are you referring to what’s in the record?”
“Both,” Steinschneider answered blithely.
This was the moment that Bob Simpson, a rural prosecutor who could not say what the letters SIDS stood for until this case, began taking apart the central data of the hypothesis that had gripped the SIDS world for more than two decades. Simpson was the unlikely grand inquisitor of the origins of the apnea theory, and Steinschneider himself had provided the ammuntion. Simpson didn’t know about Steinschneider’s letters to the psychiatrist Stuart Asch, or about his claim, during the 1974 meeting in Toronto, that the nurses had resuscitated the babies in the hospital. But he had in his hand a copy of Steinschneider’s response to the 1973 letter to Pediatrics from Dr. John Hick.
“Now, prior to coming to court today, were you asked to review the medical records that Mr. Miller and Mr. Urbanski gave you, to find in there the incidences of apnea?” Simpson asked, pacing as he spoke.
“I had gone over it.”
“And did you find incidences in the record where there was evidence of prolonged apnea?”
“Yes.”
“And did you find incidences in the record where the nurses had to resuscitate the children?”
“Where they stimulated them.”
“And tell me the difference between stimulation and resuscitation.”
“Well, it’s a matter of degree. Very often some people when they talk about resuscitation, talk in terms of mouth-to-mouth resuscitation. Others just stimulation.”
“And there is evidence of that, this stimulation, in the record?”
“The alarm sounded … apparently the baby was stimulated and there’s evidence in the record.”
“Did the thought ever occur to you, Doctor, as you read the record, perhaps there was a malfunction to the monitor? So it could have been that the monitor went off because the baby quit breathing, or as is set forth many places in the record, it could have been simply that the baby was breathing so softly that the monitor didn’t pick it up.”
“Correct,” said Steinschneider, a significant acknowledgment. He sipped water from a paper cup.
“Were there any evidences in the record of vigorous stimulation of these children to arouse them out of this apnea state?”
“Not that I recollect.”
“Yet when you wrote an article in response to Dr. Hick, you specifically mentioned, in your defense, that on two occasions the nurses were required to vigorously stimulate the children.”
“If I wrote it, then it happened. But I didn’t see it in those notes.”
“So which is the truth?”
“The truth is I wrote it, therefore it’s true. I wouldn’t have written it if it wasn’t true.”
“So everything you write is true.”
“To the best of my knowledge it is, yes.”
“Well, do you have a specific recollection in the record, Doctor, of a place where it talks about vigorous stimulation performed by a nurse?”
“No, I do not.”
“And wouldn’t it be important in your clinic that the nurses put such things down? Isn’t that the reason these children were being studied?”
“Would it be important? It would be important.”
“And when you questioned the nurses about vigorous stimulation, I presume, based on your testimony, that they related to you orally that they had to vigorously stimulate these infants?”
“That’s correct.”
“And you recall that as though it were yesterday.”
“No, I do not recall it. I recall it because I wrote it.”
“Perhaps you wrote it in your letter to the editor in defense of your position as opposed to something that actually happened. Is that a possibility—you fabricated it in defense of your position?”
“No,” Steinschneider replied calmly.
“You wouldn’t do that?”
“No.”
“You wouldn’t. All right … I want to call your attention to the second page of your letter. It says, ‘During the periods of hospitalizations, M.H.…’ Read that paragraph to yourself, Doctor, would you please?” Steinschneider peered down. He had brought some of his own files with him. Hick’s letter was among them.
“Did you use the words vigorous stimulation with respect to Molly and Noah in that letter?” Simpson demanded. “Did you?”
“The answer is yes, I said on these occasions, ‘Vigorous stimulations were required before spontaneous respiration resumed and skin color returned to normal.’ ”
“And you got that information from where?”
“I got that from my notes, the nurses’ notes, and in talking to the nurse.”
“Okay. And you will be able on the lunch hour to find your notes and the nurses’ notes as to where the term ‘vigorous stimulation’ comes from?”
“No.”
“Why not?”
“The only notes I have are those that apply to the medical record. I’ve looked for that. I did not see in those particular babies where they said vigorous stimulation.”
“So it’s not in the medical record.”
“There were records I kept following discussions.”
“And where are those records?”
“I don’t have them.”
Simpson continued to pounce, sounding at times more like a prosecutor of scientific malfeasance than of child murder—as if, as Linda Norton said, it really was Steinschneider who was on trial. “And it was those conversations that you’re relying on to use the ‘vigorous stimulation’ that’s in that letter.”
“It would have to be.”
“You don’t have any memory of it when you sit here today, do you, Doctor?”
“I have recollections of talking to nurses about their observations.”
“I didn’t ask you that, Doctor. I asked you if you had a recollection as you sit here today of a nurse advising you of vigorous stimulation.”
“No.”
“Now let’s try this another way and see if we can find someplace else where you put things in a chart that aren’t accurate.” Simpson contended that the hospital records did not document patterns of prolonged apnea, in part because the inadequacy of the monitors rendered alarms at fifteen-second settings ambiguous at best. “And you went ahead and you wrote an article in 1972. Did you mention in your article that you were basing some of your information on things that were outside the hospital records, i.e., reports that the nurses made to you that aren’t documented?”
“Did I say that I used records outside? I did not say where I got the information. I said I got the information from the data I accumulated, that’s where I got the information from.”
“Excuse me, you got the information from where?”
“I got the information from all—what I would report is the totality of the information without necessarily specifying exactly where I got it from.”
“And could you tell us the names of the nurses that made these oral reports?”
“You didn’t think it was important to put that in the record with the two apparently life-threatening or near-miss SIDS?”
“They were all near-misses.”
Simpson pointed out that most of the apneic periods Steinschneider listed in his discharge notes seemed to last only a few seconds. “Are you telling this jury that those were near-miss SIDS?” he asked.
“No.”
“Okay, now tell us what a near-miss SIDS is then.”
“It would be reported as a prolonged apnea. Fifteen seconds or greater.”
“So fifteen seconds or greater is a near-miss SIDS?”
“No, I said it was prolonged apnea.”
Simpson asked if there was any evidence in the records that either Molly or Noah had had what was then considered a “near-miss SIDS.”
“In the hospital records?” Steinschneider asked. “They stimulated the baby.”
“I didn’t ask you that. I asked if there was any evidence of near-miss SIDS.”
“In the sense in which that term was being used then, I would say at least at those times when they felt the need to stimulate.”
“Now, Doctor, over the lunch hour I would like you to go through Exhibits 16 and 17, which are hospital records for Noah and Molly, and I would like you to pick out every incidence where there was stimulation. Can you do that for us?”
“I will try.”
Steinschneider stepped from the witness chair, and descended to the defense conference room with a look of concern on his face. He spent the next hour furiously paging through the thick stack of records. What he didn’t know was that over lunch, Simpson was deciding to drop the issue. The prosecutors knew that there were a couple of instances when Molly had been stimulated in the days after she had been rushed back to the hospital. Although they felt the stimulation was probably just a precaution by a careful nurse on a heightened sense of alert, Simpson didn’t want to give Steinschneider the chance to exaggerate its significance or portray an isolated incident as a vindication. Returning to the witness chair, Steinschneider girded himself for another onslaught. Instead, and to his and the defense lawyers’ surprise and relief, Simpson opened the afternoon with a question about his early research work.
Simpson made his way from Steinschneider’s long experience with SIDS to the issue of whether he believed the term could be applied to the Hoyt children, and if so, to which ones. It was a provocative historical question since the implication of his 1972 paper had always been that all five fell into the realm of SIDS. Now, in 1995, he said that he wouldn’t classify either Eric or Julie as a SIDS victim because neither had been autopsied at their deaths.
Would you consider James a SIDS? Simpson asked. “Me?” Steinschneider said. “No, I would say that James, the best information available, based upon the autopsy done, I would have to go with the pathologist who said that what he saw was a small adrenal, and it was their expert opinion and I have no reason to question it. This baby may have had a small adrenal gland and died of adrenal insufficiency.”
Molly and Noah? The autopsies found no known cause of death, Steinschneider said. “This by definition is what we mean by sudden unexplained death in infancy, or the sudden infant death syndrome.” He added, “When Noah died, an autopsy was done, presumably a death-scene investigation was done, and the police, the coroner, did what they were supposed to do. Whatever they did.”
And shouldn’t a complete death-scene investigation be part of any assessment of whether an infant death can be called SIDS? “Should there be?” Steinschneider said. “Of course.… If you’re asking me whether or not I think a particular investigator did a thorough job, Lord have mercy, I’m having enough trouble talking about physicians doing appropriate jobs, I’m certainly not going to pass judgment on whether you are doing an appropriate job, or they are, or the judge is. Forgive me, Judge.”
“And that’s the problem I’m having,” Simpson said. “… You come in here and say that Molly and Noah meet the definition of SIDS, yet you haven’t taken into account when you make that determination what the death-scene investigation was.” Simpson brought up Steinschneider’s own recent article in Pediatric Clinics of North America, which mentioned the importance of a death-scene investigation.
“I appreciate your reading it,” Steinschneider told Simpson. “It was a good article.…”
“You’re willing to make a SIDS determination in the case of Molly and Noah without knowing what the death-scene determination was, or whether there was one.… You’re making a presumption that one was done.”
“I would hope that the people are as thorough as I am,” Steinschneider said.
“Now, you testified previously at this trial that you’re unable to say whether or not the Hoyt children were the subject of a murder, is that correct?” This was the issue that had turned their phone conversation into a conflagration.
“That’s correct,” Steinschneider said.
“So for all you know, they could have been suffocated.”
“For all I know,” Steinschneider agreed this time, “they could have been suffocated.”
“Did you ever consider that as a possible cause of death of any of the Hoyt children?”
“Yes.”
“And did you refer your thought on to any police agency?”
“No.”
“Did some of the nurses in Syracuse advise you that they thought these children were dying at the hands of a parent?”
“I could not answer that. I don’t recall anybody saying that.”
“How about Julie Evans? Nurse Evans. Do you remember her?”
“I remember Julie Evans. I can’t give you details, but no I don’t—”
“Is it possible that Nurse Evans told you she thought that these children were dying at the hands of a parent?”
“I do not recall—”
“Objection—hearsay,” Miller growled.
“Sustained,” said Sgueglia, who instructed the jury to disregard the question, though it was, of course, about ten seconds too late for that. Julie Evans hadn’t been able to move Steinschneider back then, and demurred from testifying now. But in the end, her voice came through in one last whisper.
After nearly four hours of testimony, Steinschneider left the witness box with an incongruously buoyant smile. In the back of the courtroom during the break, he spotted Ginger Pinholster, and stopped to deliver a heated rebuke for the story she had a written a year before. “You didn’t do your homework,” he scolded her. He expected more from Science. Pinholster thought, No, you didn’t do your homework. She expected more from a scientist. “When I first went to interview him, I thought he was a nice man in the twilight of his career,” she remarked to a colleague, her voice flushed with astonishment at the day’s events. “But watching him on the stand, all I could think was, He’s just not telling the truth.”
Steinschneider had been under no legal compulsion to testify. But it would have been out of character for him to decline. Having told his truth, he returned to the defense room to get his coat. A minute later, the Hoyts walked in. This time, Waneta hugged him. Steinschneider wished her luck, then hurriedly left the courthouse with Roz to make their plane home to Atlanta.
Miller called on Dr. Arthur King, the eighty-year-old neurosurgeon-pathologist, to testify that the exhumations had revealed no evidence of anything, least of all homicide. Then he brought up Tim’s brother Chuck and sister Ann, and three former emergency squad members—Hank Robson, who came up from his retirement home in North Carolina, and the Balzers, Vivian and Arthur—to offer their recollections of the various death scenes. It turned out to be a blurry, largely incoherent patch of testimony, the old-timers struggling to put names to children, dates to events, memories to truth. The retired rescuers lined up as they once had, mostly on the side of innocence. Though it was nearly impossible to distinguish the substance of their testimony, those who believed Waneta had not killed her children testified for the defense, while only Bob Vanek, the one among them who had been suspicious all those years ago, testified for the prosecution.
It was all so inscrutable that many people in Tioga County reduced the entire trial to pointlessness: What can they prove now? It was partly why, despite the power of the confession and the strength of the circumstantial evidence, no one involved considered a guilty verdict anything near a foregone conclusion. As the medical evidence deepened and the defendant’s woeful countenance became a fixed part of the setting, a surprising suspensefulness began to envelop the culture of the trial.
On Thursday, April 13, Miller’s star medical witness arrived from Texas. In the months since Dorothy Kelly had signed on to the case, she had ended her twenty-year tenure at Harvard and Mass General to join a private operation called the Southwest SIDS Research Institute. She focused, like Steinschneider, on siblings of SIDS victims and babies with apnea whom she sent home on monitors. Shortly before she moved, Miller and Urbanski had gone to Boston to talk about what she had found in the files of the Hoyt babies—the raw materials of Steinschneider’s beliefs, and hers. They sat in Kelly’s home and heard her say that these were the records of babies who were sick with respiratory disorders. It was tantalizing testimony but for one problem: She could find nothing in the records that might explain Jimmy’s untimely death. Miller and Urbanski agreed there was only one strategy for Kelly’s testimony. They had to pretend Jimmy didn’t exist.
By the time of the trial, there was another problem, and it put Kelly on Miller’s growing list of aggravations. A week before she was to testify, Kelly sent the first half of her bill: $8,275 for reviewing the medical records and consulting with the lawyers. She followed up with a message on Miller’s answering machine saying she would very much appreciate being paid before she came to testify. Miller was annoyed by what he took as an implied threat. Most of the other medical witnesses, on both sides, were taking nominal fees for testifying or none at all. Miller thought Kelly had piled up her $300 hourly fee rather liberally—and he was, for the moment, all out of Tioga County money. But the strength of Simpson’s case left him feeling that he needed Kelly more than ever. He sent her a personal check.
Kelly arrived in court a week later, and apparently felt no diffidence about openly demonstrating her fealty to the defense. Waiting for the day’s proceedings to begin, she sat down next to Waneta in the well of the courtroom, took her hand, and stroked it. She whispered something into Waneta’s ear, and Waneta laughed. Kelly had read the confession, but waved it off. “I’m not here to comment as to whether she killed them or not,” she had told the lawyers. “I’m just here to comment on what I see in the records and what my research has shown.” Urbanski told her, good—stick with that.
“Dr. Dorothy Kelly,” he announced after the judge arrived on his perch, and the jurors saw a woman with curly red hair and glasses rise from her seat at the defense table, the only witness who didn’t approach the stand from a neutral place. In this medical debate wrapped in the drama of a murder trial, she was the seventh physician to testify.
Just as she had with Steinschneider’s theory in the 1970s, Kelly followed his testimony with an enterprising spin, making a splash of her own. Under direct examination by Urbanski, she offered the jury an alarming new view of the medical records. “Doctor, is there anything in the record of that date that is significant to you?” Urbanski asked repeatedly, rhythmically, stopping Kelly at notation after notation. “Yes, there is,” she would respond each time, her forceful Boston brogue reverberating through the courtroom. She would go on to explain that it was not normal for an infant that age to regurgitate that much formula, or for a baby to be cyanotic about the mouth, or to vomit and be cold to the touch, or to have a drop in heart rate in that circumstance, or to go that long without breathing. It was Kelly’s theory that what was running through the Hoyt family was a problem with the vagus nerve.
The vagus nerve, one of the dozen cranial nerves that emanate from the brain, plays a role in heart rate and respiration, and Kelly testified that she saw evidence in the records that these children’s were overactive. “It means that the parasympathetic part of the autonomic nervous system is overactive,” she explained to the jurors. Some had begun to look dazed by the relentless assault of medical testimony, although others seemed to be listening conscientiously for evidence that might attribute the deaths to natural causes.
Kelly used as her critical point of departure a notation in Molly’s record by Dr. Roger Perry, her pediatrician at Tompkins County Hospital. On April 10, 1970, three days before he referred the baby to Steinschneider, Perry discharged Molly with a diagnosis of “hyperactive vagus nerve.” He came to this conclusion after giving her a simple test: When he pressed on her eyeballs, her heart rate slowed. “The normal response is that the heart rate wouldn’t change or it would increase,” Kelly said.
“Does that cause a problem?” Urbanski asked.
“That can cause a problem. If the test is positive, that tells me there is overactivity and therefore other things could happen such as not breathing or breathing too slowly or having the heart beat too slowly. So if this were the only sign that I had of a problem with an infant, then I would send that child home on a monitor. And the parents would have to be taught how to help the baby if there is a problem … a little stimulation all the way up to CPR. We would have to teach them that.”
Kelly said she’d also found something in Eric’s record, thin as his file was, that led her to believe he had a similar problem. It was something Steinschneider wrote when he took the family history at Molly’s first admission at Upstate five years later. According to his mother, Eric “had recurrent cyanotic ‘passing out’ spells” during his three months of life. “He would gasp for air ‘like he couldn’t get his breath.’ ” Urbanski asked Kelly what that meant to her. “The records from Eric indicate to me that he also probably had a problem with the vagus nerve because of his difficulty getting air in.” She added, “I have had many mothers and fathers tell me almost in those same words. ‘It’s like you can’t get air in,’ is what they tell me.” She felt the description of Julie’s death in the same history—“seemed to choke, turn blue and died”—also indicated a vagus nerve problem. “In light of what we see clinically with Molly,” Kelly testified, “the histories of both Julie’s death and Eric’s death are consistent with increased tone of the vagus nerve.”
She found a related pattern of problems. Using the nursing notes for Molly and Noah, which provided an unusually detailed chronicle of the babies’ daily digestive performance, Kelly offered the jury an ominous analysis of their regurgitations. They spit up more than normal, she said, and with uncommon vigor. “It is unusual for an infant under four weeks of age to actually regurgitate and spit the formula out,” she said, though the records didn’t actually say they had “spit it out.” At this, a look of incredulity crossed the faces of several women on the jury.
“Were you able to determine the number of times during the hospitalization that lasted from April 15 to May 8, 1970 the number of times Molly Hoyt regurgitated?” Urbanski asked.
“The nurses note twenty times when she did regurgitate, and they stated that the amount she regurgitated was between three cc’s, which would be half a teaspoon, to a hundred-twenty cc’s, which is four ounces. The median amount of her vomiting was forty-five cc’s, which is an ounce and a half.… To me this is significant because nurses don’t usually make note of little bits of spitting-up when they’re burping babies.”
Now, apnea. She found significance in some of the early nurses’ notes from Upstate. “Nurses in general don’t note apnea, just like parents don’t note apnea, because all babies have periods when they don’t breathe, but they’re brief and not very frequent. Here is a nurse who says not just apnea but ‘many apnea spells.’ To me that means the baby stopped breathing many times.” At the prosecution table, Peggy Drake, who would do the cross-examination, made a note to ask Kelly a few questions to demonstrate that this was a research setting, and the nurses had been instructed to put everything down, significant or not.
Kelly read a section of Molly’s record in which Thelma Schneider had noted, a day after the baby’s first admission, that she had breathed periodically. Urbanski asked why this was important. “In the studies that I have done,” Kelly said, “I have found an increased amount of periodic breathing in children who have siblings who died of SIDS and in children who have had an apparent life-threatening event and have subsequently died.”
“What in your opinion is the clinical picture the child presents to you?” Urbanski asked.
“This is a child who, according to the notes, I would consider having significant problems with apnea, most of it sleep apnea. This baby ought to be tested and treated.”
Urbanski led Kelly on a similar review of Noah’s records, by the end of which she had portrayed four of the five Hoyt children as abnormal and vaguely unhealthy. All except Jimmy. As he and Miller had decided, throughout the long and painstaking direct examination, Urbanski never mentioned his name, nor did Kelly.
“Now, Doctor,” Urbanski said, moving into the climax of Kelly’s testimony, “have you been involved in the observation and treatment of families where there have been multiple occurrences of unexpected deaths?”
As part of her preparation for the trial, Kelly had reviewed her files all the way back to the time when she began working under Daniel Shannon as a resident in the pediatric ICU at Mass General. “Since 1974,” she told the jury, “I have taken care of twenty-nine families where there have been at least two infants who have died of SIDS. And I have cared for the third infant or the fourth infant and even the fifth infant.” Of those twenty-nine babies from families with prior multiple deaths, five went on to die themselves, she said. But even among the babies who did not die, nearly all of them had episodes of apnea.
“To what do you attribute this?” Urbanski asked.
“To an abnormal parasympathetic nervous system, to excess tone of the vagus nerve.”
“To what?”
“To excess tone of the vagus nerve or in the parasympathetic nervous system,” Kelly repeated. “I can tell you about several families.”
The first one she picked had four deaths. “The child was referred to us where two previous siblings had died. His studies in the laboratory showed frequent prolonged apnea. And he was discharged on a monitor, but subsequently had a severe episode, came back into the hospital, and did die as a consequence of that episode. The next child born into that family—they were living in Pennsylvania at that time—was in the backseat of the car, in a car seat in the middle of traffic, the mother looked back and saw her cyanotic, or blue. She stopped the car, jumped out, jumped into the backseat. The consequence was that this infant died. The next infant that was born into the family, the fifth one—they had moved back to the Massachusetts area—was referred to us and he had abnormal studies. He was monitored and he had two episodes during monitoring requiring resuscitation and another two requiring vigorous stimulation. And he survived.… I have two other families with similar histories but only having three babies involved.…”
“Doctor Kelly,” Urbanski said, “there has been testimony as to the odds of unexpected death beyond three children in a family being so phantasmagorical as to be beyond calculation. Do you agree with that?”
“No, I don’t agree with that. In general, there are families with one baby that dies of SIDS and none of their other babies have problems at all and don’t die. But then we have family clustering, and these are the families I have mentioned where there are two to five children involved.…”
“And it is based upon the studies of cases that you yourself have personally dealt with.”
“Yes.”
“Thank you, Doctor.”
Simpson, Drake, and Courtright dashed for their conference room and shut the door. Their medical people hadn’t said anything about any vagus nerve. “I’m not worried about the regurgitation,” Simpson said. “Anybody who’s had a kid knows that’s bullshit.” But there must be something to this vagus nerve—she couldn’t be just making it up. Simpson, though, knew they were in no position to mount a safe and intelligent cross-examination. The best course was to leave it alone and bring in a rebuttal witness to deal with it after the defense rested. For now, they’d go after what they did know about.
“Isn’t it true, Doctor, that many babies under the age of four weeks old regurgitate?” Drake asked when they resumed.
“That’s not true,” Kelly said.
“It’s not true?”
“I’m—excuse me. They may do small spits with their burps. That’s common. But actually to regurgitate an ounce to two ounces is not common under four weeks of age.”
“But after four weeks of age it is common?”
“It occurs in children that have gastroesophogeal reflux. It’s not the majority of babies, but it may be a third of babies. So in that sense it would be common.”
Under Drake’s questioning, Kelly also acknowledged that many of her assumptions about the Hoyt babies were based on information that was, under the circumstances, open to question—on what their mother had told Steinschneider. “I assumed it was true,” Kelly said.
“Did you at any time question whether or not it was true?”
“I think a physician has to always question whether or not the history is true. The nature of her description made me believe that they were true because the same types of words and phrases were being used that my patients’ parents use.”
Kelly’s allusion to her own patients provided Drake with a perfect segue. “Doctor, I have an article that you wrote with a Dr. Oren and a Dr. Shannon.…” The young assistant prosecutor began challenging Kelly’s research with Shannon as few had—asking questions that the members of the NIH consensus panel, for instance, had carefully avoided a decade before. The meaning of their provocative data about familial SIDS had always stayed within the bounds of polite scientific discussion, but when the unraveling of Steinschneider’s H. case brought their shared theory into the less tactful venue of criminal justice, it was inevitable that the case would cast its long, retrospective shadow upon the Harvard team’s families too. The most intriguing were those included in the article that Peggy Drake now held in her hands—the paper Kelly, Shannon, and research fellow Joseph Oren published in 1987 about four families with fourteen SIDS deaths between them.
“… And as a conclusion of that article,” Drake was saying, “you gave a death rate for siblings of SIDS where there were two or more SIDS victims in one family. And the percentage is seventeen-point-nine percent.” She asked Kelly how she explained the disparity between that frighteningly high figure and the risk, less than one percent, to babies born into families with only one prior SIDS death.
“It has been my experience that there are families where multiple children have signs of vagus nerve overactivity,” Kelly said. “And these children are at risk of death.”
“And in fact I think you even made a notation in your article that this small number of families was altering the risk factor, the death rate.”
“For the subsequent sibs death rate. I believe that, though I can’t prove it.”
“And would you agree with me that there is certainly disagreement in the medical community whether or not two subsequent siblings of SIDS raises the risk of death by SIDS?”
“In terms of all the physicians that I am familiar with who actually take care of these infants, the third infant, they are all very careful with them. They all believe the third infant would be at higher risk than a regular firstborn child without any family history of SIDS.”
“How about forensic pathologists?”
“I’m not in contact with them.”
“Doctor, isn’t it quite possible that these children are victims of homicide?” Drake asked.
“These children who have symptoms of autonomic nervous system dysfunction have an illness,” Kelly insisted. “Any child can be killed, there’s no question about it. They’re helpless.”
“Is it possible that they could be the victims of a homicide?” Drake pressed.
“Any child could be. We’re talking about children here who have symptoms of a disease that could lead to death.”
Drake asked Kelly about the family whose third child died in the hospital after coming in barely alive, and whose fourth child died in traffic. “In both of these instances you were speaking to the parent about what had happened. Is that correct?”
“That’s correct, but don’t forget that the third child had been tested and was abnormal. He had prolonged apnea.”
“I understand that, Doctor, but you were taking her word for what had occurred for both of those episodes and now they died.”
“A physician does that with every history that he takes or she takes.”
Drake asked if it wasn’t important to completely investigate the circumstances of such deaths. Yes, Kelly said. “And is it important also when you’re dealing with these multiple deaths in one family, is it important to consider whether the children were in the company of one particular parent when they died? Is that of significance?”
“If you’re alluding to Munchausen’s by proxy, which is—”
“I’m asking you to answer my particular question,” Drake cut in sharply, scrambling to keep the syndrome, and possibly an excuse for acquittal, out of the jury’s consciousness. “Is it important to look at it? To look at who is present with the child when the child dies?”
“Yes, it is.”
“And is it significant if it is one parent or one person each particular time?”
“It can be significant and you do consider it.”
“Are you denying that it is possible that all five of the [Hoyt] children were victims of homicide?”
“No.”
“In considering multiple deaths in one family, would you also consider it significant that children die the day after they are released from the hospital?”
“That I would consider significant.”
“And why is that significant?”
“Because you would wonder why. With [Noah] I think it was approximately twelve hours after discharge. Noah had such a severe episode that it caused his death. And in the hospital he had not had that. However, on the other side of that, it’s the experience of many physicians now across the country of children having significant apneic events in the home. It’s recorded and we know it happens.”
“We’re talking about Molly and Noah. Noah’s events were not recorded. Correct?”
“Correct.”
Drake asked about the episodes that kept sending Molly and Noah back to Upstate—six admissions and readmissions between them. “Isn’t it possible, Dr. Kelly, that these episodes that occurred at home in the presence of the mother were in fact caused by the mother? Isn’t that a possibility?”
“That is a possibility.”
“Aren’t there cases in the literature where the parents will continue to bring their children back to the hospital after life-threatening episodes of apnea and continue to bring them back, and it’s later been proven that those episodes were caused by the parent?”
“I haven’t done a review on that, a research review, but I think there are only two cases in the literature.”
“Two that you are aware of, correct?” By now, the world literature included dozens of cases.
“Yeah,” Kelly said, “I haven’t done a review on that.”
She stepped down and was on her way back to Texas by sundown. A few days later, Miller received the invoice for her day’s testimony and its preparation, which included a phone conversation with Steinschneider. The bill came to $7,000, for a total fee of more than $15,000. Miller was outraged. He could only imagine the reaction he would get from the people who ran one of the poorest counties in New York State. “I’m not paying a penny of it,” he said. “And I hope she sues me in Tioga County Court.”