The killings of the Crimmins children
Marzlock - Qchron.com
The name Alice Crimmins isn’t that well known
today, but almost 47 years ago she was vilified as the Susan Smith
of her generation. Her children, Eddie Jr., age 5, and Missy, age
4, vanished from their garden apartment in Kew Gardens Hills at
150-22 72 Drive on July 14, 1965 — victims of an alleged
Crimmins was once very much in love with her
handsome husband, Edmund. But he was working longer hours, started
drinking, developed a paunch and double chin and was no longer
paying any attention to his wife. She started seeing other men in
her need for approval and attention.
Several days after being reported missing,
little Missy was found strangled. Later Eddie was also found dead
but too decomposed to show a cause of death.
Crimmins, of lower class, overly teased hair
and too much black eyeliner, was tried in the media for her female
promiscuity, not the actual homicides. There was never a shred of
physical evidence to connect her to the murders. Still, she was
put on trial and found guilty in May 1968.
Then high-profile attorney Herbert Lyon took on
the case, and Crimmins was released 24 days after the conviction,
remaining free for three years, until a second trial in 1971. She
was convicted then too and imprisoned.
Crimmins was paroled in November 1977. She had
married her long-time millionaire boyfriend, Anthony Grace, and
moved away to Boca Raton, Fla. to live in anonymity. However,
since his death (of natural causes) there have been sightings of
her back in Queens and on Long Island.
Despite the conviction, the deaths of her
children remain for many one of the most puzzling of Queens’
Alice Crimmins Case – 1965
murder of two children results in the mother’s arrest.
the 1996 NYT Index look under Murders – NYC, Crimmins, A. and
E. Jr., The first citation is 1966, 38:1. Also see trial dates
and appeal is in NYT 2/26/75:34.
Great American Trials, Reference KF 220 .G74 1994 page 559
Bloodletters and Badmen, Reference HV 6785 .N37 1995 page 169
Eddie Crimmins, Jr. and Alice Marie "Missy" Crimmins
July 14, 1965
May 9-27, 1968 and March 15 – April 23, 1971
The Medea of Kew Gardens
morning of July 14, 1965, Eddie Crimmins received a telephone call
from his estranged wife Alice, accusing him of having taken the
children. When she had opened their bedroom door, which she kept
locked by a hook-and-eye on the outside, she had seen that the
beds had been slept in but Eddie Jr., aged five, and his
four-year-old sister Alice (nicknamed Missy) were gone. The
casement window was cranked open about 75 degrees; Alice
remembered having closed it the night before because there was a
hole in the screen and she wanted to keep the bugs out. The screen
was later found outside, leaning against the wall beneath the
window, and nearby was a 'porter's stroller' -- a converted
baby-carriage with a box on it.
husband, an airplane mechanic who worked nights, protested that he
knew nothing of the children's whereabouts and, alarmed by the
message, said he would come right over to see her. Alice and the
children lived in a dispiriting redbrick apartment complex
flatteringly named Regal Gardens, located near the campus of
Queens College in the Kew Gardens Hills section of the New York
City borough of Queens. Shortly after joining his wife, Eddie
called the police, and the first contingent of patrolmen were on
the scene in a matter of minutes. By 11 a.m. precinct cars were
parked all around the grassy mall adjoining Alice's apartment
building at 150-22 72nd Drive.
Piering, who was the first detective to arrive, quickly made the
case his own. Hoping for a promotion to second grade on the Queens
detective command, he immediately sensed that he had stepped into
an important investigation. It took only one glance at Alice for
him to decide that she did not look the picture of the anxious
mother, this striking redhead in her twenties, with thick make-up,
hip-hugging toreador slacks, flowered blouse and white high-heeled
shoes. Patrolman Michael Clifford had already filled Piering in on
the background -- the Crimminses were separated and in the middle
of a custody fight, but the role that the vanished children might
have played in their skirmishing was still obscure.
fruits of Piering's look around the premises confirmed the
unfavorable impression Alice had made. In the garbage cans there
were about a dozen empty liquor bottles that Alice later
attributed to good housekeeping rather than over-indulgence,
explaining that she had been cleaning the apartment in
anticipation of an inspection visit from a city agency in
connection with the custody suit. Still more revealing to Piering
was a proverbial "little black book" that Alice had dropped
outside; the men listed outnumbered women four to one. While
Piering was making his rounds, Detective George Martin found
trophies of Alice's active social life in a pastel-colored
overnight bag stowed under her bed. The greetings and dinner
programs that filled the bag documented her relationship with
Anthony (Tony) Grace, a fifty-two-year-old highway contractor with
ties to important Democratic politicians. Alice's souvenirs showed
that Tony Grace had introduced her to such party stalwarts as
Mayor Robert Wagner and Senator Robert Kennedy; messages from
Grace and important city officials addressed her as 'Rusty.'
Alice into her bedroom and questioned her about her activities on
July 13. Between 2:30 and 4:30 in the afternoon she and the
children had picnicked in Kissena Park, six blocks from the
apartment. They came home after stopping to pick up some food for
dinner; at Sever's delicatessen in the neighborhood she had bought
a package of frozen veal, a can of string beans and a bottle of
soda. When she arrived home she called her attorney, Michael
LaPenna (recommended to her by Grace), to discuss the custody case
which was scheduled for a hearing in a week. She was concerned
about a former maid, Evelyn Linder Atkins, who claimed that Alice
owed her $600 and, according to Alice, had hinted that if she were
paid she would not testify against her in the proceedings. Evelyn
had a worrisome story to tell the judge if she decided to do so,
for Alice had without warning abandoned the children one weekend
while she took a boat trip to the Bahamas with Tony Grace and his
friends. Alice told Piering that it was not her fault; she had
thought she was aboard only for a bon voyage party but the
men had playfully locked her and a girlfriend in a washroom and
carried them off to sea. Perhaps LaPenna shared her concern about
the maid, because the lawyer did not seem as optimistic about her
chances of retaining custody as he usually did.
Alice took the children for a ride in the direction of Main
Street, wanting to find out the location of a furnished apartment
to which her husband had recently moved. Knowing that Eddie had
planted a crude 'bug' on her telephone, she was hoping to
retaliate by finding him to be living with a woman. She drove
around for more than an hour until it was almost dark and then
gave up the search.
returning home, Alice prepared the children for bed about 9 p.m.
(Theresa Costello, aged fourteen, Alice's former babysitter, later
told the police that it was at this very moment that, passing
below the bedroom window on her way to a babysitting job, she
heard the Crimmins children saying their prayers.) Alice brought a
replacement screen from her room to the children's bedroom but
noticed that it had been fouled by her dog, Brandy. She therefore
reset the children's punctured screen in the window without
bothering to bolt it into place. Mindful of the coming agency
visit, she disposed of wine and liquor bottles and made a pile of
old clothing; by 10:30p.m. she was tired, and collapsed on the
living-room couch to watch The Defenders on TV. The program
did not make her forget that Tony Grace had not returned the call
she had made earlier in the day. She reached him at a Bronx bar
and to her jealous questions he responded that he was alone. After
she hung up, Alice received a call from a man Grace had apparently
replaced in her affections, a house renovator named Joe Rorech.
Alice had met Rorech in January 1964 when she was working as a
cocktail waitress at the Bourbon House in Syosset, Long Island.
After Eddie had moved out of the Crimmins apartment, another
Bourbon House waitress, Anita ("Tiger") Ellis, had come to live
with Alice. For a while they had shared the favors of Joe Rorech,
but "Tiger" had soon moved on to new attachments. In their
conversation last night, Joe Rorech asked Alice to join him at a
bar in Huntington, Long Island, but she evaded the invitation,
pleading the unavailability of a babysitter.
to Joe, Alice returned to her television set. At midnight she took
little Eddie to the bathroom but could not wake Missy; she thought
she had re-latched the bedroom door. (The door was kept locked,
she explained, to keep Eddie from raiding the refrigerator.)
Afterwards, Alice took the dog Brandy for a walk, then sat on the
front stoop for a while. She told Piering that she may not have
bolted the front door at the time. When at last she was getting
ready for bed, her husband called and angered her by repeating the
maid's claim that Alice owed her money. Alice calmed down by
taking the dog out again and, after a bath, went to sleep between
3:30 and 4 a.m.
Eddie, childhood sweethearts, had been married seven years. They
were reasonably happy for a while but, soon after the birth of
their son, they quarreled frequently about Eddie's staying out
late working or drinking with friends. After Missy was born, Alice
decided to have no more children and Eddie, brought up a good
Catholic (as was she) never forgave her after he found birth
control devices in her purse. Their relationship went from bad to
worse until, on June 22, 1965, he went to the Family Court to seek
custody of the two children. By then, the couple were already
separated, the children living on with Alice at the Regal Gardens.
The custody petition charged that, immediately after the
separation, Alice "began to indulge herself openly and brazenly in
sex as she had done furtively before the separation." It was
further detailed in the petition that Alice "entertains, one at a
time, a stream of men sharing herself and her bedroom, until she
and her paramour of the evening are completely spent. The
following morning, the children awake to see a strange man in the
high degree of jealousy with a flair for the technology of
snooping, Eddie had devoted many of his leisure hours to
surveillance of her relations with men. He had much to observe,
for when Alice gave up her secretarial work to become a waitress
at a series of Long Island restaurants and bars, her opportunities
for male acquaintance multiplied. To keep his compulsive watch,
Eddie bugged her telephone and installed a microphone in her
bedroom which he could monitor from a listening post he had
established in the basement below. Once he had burst in on Alice
and a usually overdressed waiter named Carl Andrade, who had fled
naked out of the window to his car.
to think that the purpose of his spying was to gather evidence for
the custody case, but he ultimately admitted that he had often
invaded Alice's apartment when she was out just to be near her
"personal things." During their separation, so Alice said, Eddie
told her that he had exposed himself to little girls in a park,
but Alice disbelieved him, thinking that he was trying to play on
her sympathy for his loneliness and distress.
preoccupation with his wife's love life dominated his activities
on July 13, as he recounted them to the police. At 7 a.m. he had
played a poor round of golf at a public course at Bethpage in
Nassau County. Afterwards he drank three beers in the clubhouse
with a friend and watched the New York Mets baseball game on
television, leaving around 2 p.m. before the game ended. He then
drove to Huntington to see whether Alice was visiting Joe Rorech
but was disappointed to find no sign of her four-year-old Mercury
convertible there. He arrived home at 5 p.m. and spent the evening
watching television. Then, about 11 p.m., he drove along Union
Turnpike to a small fast food stand near St. John's University,
bought a pizza and a large bottle of Pepsi Cola, and returned
home. Alice, though, was still very much on his mind. After
driving back to the Union Turnpike and drinking gin and tonic at a
bar until 2:45 a.m., he drove into the parking lot behind his
wife's bedroom window; he thought he saw a light there and in her
living room. He went home and called up Alice to talk about the
maid. When Alice hung up, he watched a movie on television, read
briefly and fell asleep by 4 a.m. A detective who checked out
Eddie's story found that the movie he claimed to have seen on the
CBS channel had actually been on much earlier.
to questioning Alice, Jerry Piering, a fledgling in his job,
directed the police inspection and photographing of the apartment,
apparently with more enthusiasm than expertise. Piering later
claimed that when he first came into the children's room, he
observed a thin lawyer of dust on the bureau top, which in his
mind eliminated the possibility that the children had left the
room through the window since they would have had to cross over
the bureau. However, technicians had covered the top of the bureau
with powder for detecting fingerprints before the bureau could be
photographed in its original condition. It was Piering's further
recollection that when he had moved a lamp on the bureau, it had
left a circle in the layer of dust. This story was later disputed
by Alice's brother, John Burke, and others, who agreed that the
lamp on the bureau had tripod legs. Also, many people had come
into the room before Piering arrived; Eddie Crimmins had leaned
out of the window to look for the missing children, and, of
course, Alice on the previous evening had removed and replaced the
screen; it seemed unlikely that Piering's dust film would have
remained undisturbed amid all this activity. In any event, neither
the layer of dust nor the impression left by the lamp base was
noted in Piering's first reports.
In the early
afternoon of July 14, 1965, the Crimmins case was transformed from
mysterious disappearance into homicide. A nine-year-old boy, Jay
Silverman, found Missy's body in an open lot on 162nd Street,
about eight blocks from the Regal Gardens. A pyjama top, knotted
into two ligatures, was loosely tied around her bruised neck. An
autopsy, performed with the participation of Dr. Milton Helpern,
New York City's distinguished Chief Medical Examiner, found no
evidence of sexual assault; hemorrhages in the mucous membranes in
the throat and vocal cords confirmed that Missy had been
asphyxiated. The contents of the stomach were sent to an expert,
who reported finding, among other things, a macaroni-like
substance. This discovery rang a bell with Detective Piering, who
recalled that on the morning of July 14 he had seen in Alice's
trash can a package that had held frozen manicotti and had also
noticed a plate of leftover manicotti in her refrigerator.
However, none of this evidence had been preserved -- nor had
Piering's discoveries been referred to in his contemporaneous
discovery of Missy's body, the search for young Eddie intensified.
A false alarm was raised in Cunningham Park when what looked like
a blond-headed body turned out to be a discarded doll. On Monday
morning, July 19, Vernon Warnecke and his son, walking together to
look at a treehouse used by the children in the neighborhood,
found Eddie Crimmins on an embankment overlooking the Van Wyck
Expressway. The boy's body was eaten away by rats and insects and
in an advanced state of decay. The site was about a mile from
Alice Crimmins's apartment and close to the grounds of the New
York World's Fair that was then in progress.
children were buried, Alice and her husband, reunited by their
tragedy, faced a relentless police investigation which explored
many trails, always only to return to Alice. Detectives pursued
reports of strange intruders in the Crimmins neighborhood,
including a so-called "pants burglar" who broke into homes only to
steal men's trousers. A closer look was taken at the boyfriends
whose names filled Alice's black book. Anthony Grace admitted in a
second interview that he had lied when he told the police he had
never left the Bronx on the night of July 13/14. He now stated
that he had driven over the Whitestone Bridge to a restaurant
called Ripples on the Water with a group of "bowling girls," young
married women who partied around town under the pretext that they
were going bowling. Grace maintained that he had stayed away from
Alice during the period of the custody battle and had not seen her
much recently. She had called him several times on July 13 but he
was preoccupied with business and had taken his wife to dinner
without remembering to call Alice back. At 11 p.m. she phoned him
again at the Capri Bar, telling him that she wanted to join him
for a drink. He had put her off by telling her that he was about
to leave and had denied her well-founded suspicion that he was
with the bowling girls.
told Detective Phil Brady that he had called Alice twice on the
night of the disappearance, first after 10 p.m., when she declined
his invitation to the Bourbon House bar, and then at 2 a.m., when
there had been no answer. Rorech had been drinking all night and
admitted he might have misdialed the number. On December 6, 1965
the police administered the first of two sodium pentothal "truth
tests" to Rorech. Satisfied with the results, and finding Rorech's
self-confidence weakened by business reverses, they conscripted
him as a spy. Joe took Alice to motel rooms where recorders had
been planted, but their conversations contained nothing of
Eddie Crimmins had been more inclined to cooperate with the police
than Alice. He submitted to a session with the lie detector, and
persuaded Alice to take the test. However, after she agreed and
the preliminary questions were completed, she refused to continue.
With the exception of Detective Brady, the police now decided to
forget about Eddie and concentrate on Alice. Before the Crimminses
moved into a new three-room apartment in Queens to avoid the eyes
of their unwanted public, the police, succeeding to the role long
played by Alice's jealous husband, planted ultrasensitive
microphones and tapped the telephone wires. Detectives monitored
the apartment around the clock from the third floor pharmacy of a
neighboring hospital, but could not pick up a single incriminating
statement. Their failure was not remarkable since Alice seemed
well aware of the police presence, beginning many of her
conversations, "Drop dead, you guys!" Unable to overhear a
confession, the secret listeners were tuned into the sounds of
Alice's sexual encounters, which resumed shortly after she took up
her new residence. As their high-tech recording devices picked up
Alice's cries of physical need, her pursuers became more certain
of her guilt, convinced as they were that grief for the dead
children would demand an adjournment of the flesh.
reporter Kenneth Gross, who has written the principal account of
the case, police investigators vented their hostility against
Alice by interfering with the love affairs that they were
recording so assiduously. When the tireless eavesdroppers
overheard Joe Rorech and Alice making love, they informed Eddie
Crimmins, who promptly called and was assured by Alice that she
was alone. The police, hoping for a confrontation between lover
and outraged husband, flattened Rorech's tires, but he managed to
have his car towed safely out of the neighborhood before Eddie got
home. When Alice moved out of the apartment to live with an
Atlanta man for whom she was working as a secretary, the police
thoughtfully advised the man's wife, and when she came to New
York, helped her destroy Alice's clothing. Undaunted by this
harassment, Alice reappeared in her familiar nightspots, now as a
customer instead of cocktail waitress.
investigation dragged on for a year and a half without result, and
meanwhile there was a growing public clamor for action. At this
point New York politics intervened to step up the pace of events:
Nat Hentel, an interim Republican appointment as Queens District
Attorney, was soundly defeated for re-election and decided to
convene a grand jury before his term of office expired. The grand
jury failed to return an indictment, and a second grand jury
impaneled under Hentel's Democratic successor "Tough Tommy"
Mackell also disbanded without indictment in May of the following
year. Then, on September 1, 1967, Assistant District Attorney
James Mosley went before still another grand jury to present the
testimony of a "mystery witness," who was soon identified as
original entrance into the case had been anonymous. On November
30, 1966, she had written to then District Attorney Hentel telling
him how happy she was to read that he was bringing the Crimmins
case to a grand jury. She reported an "incident" she had witnessed
while looking out of her living room window on the early morning
of July 14, 1965. Shortly after 2 a.m., a man and woman came
walking down the street towards 72nd Road in Queens. The woman,
who was lagging about five feet behind the man, was holding what
appeared to be a bundle of blankets shining white under her left
arm, and with her right hand led a little boy walking at her side.
The man shouted at her to hurry up and she told him "to be quiet
or someone will see us." The man took the blanket-like white
bundle and heaved it onto the back seat of a nondescript
automobile. The woman picked up the little boy and sat with him on
the back seat; she had dark hair, and her companion was tall, not
heavy, with dark hair and a large nose. Sophie apologized for
signing merely as "A Reader."
he was entrusted with the Crimmins case by Mackell, Mosley came
across Sophie's letter, and the hunt for her began. The police
obtained samples of the handwriting of tenants living in garden
apartments from which the scene described in the letter could have
been viewed, and they identified Sophie, who recognized Alice's
photograph as resembling the woman she had seen. Sophie's
testimony before the third grand jury was decisive, and Queens
County finally had its long-coveted indictment, charging Alice
Crimmins with the murder of Missy. The prosecution had persuaded
the grand jury that there was reasonable cause to believe that the
bundle of blankets Sophie had seen contained the little girl's
On May 9,
1968, the trial began in the ground floor courtroom of the Queens
County Criminal Court Building amid widely varying perceptions of
the defendant. To the sensationalist press, Alice was a
"modern-day Medea" who had sacrificed her children to a deadly
hatred for her husband, and the pulp magazine Front Page
Detective, invoking another witch from antiquity, called her
an "erring wife, a Circe, an amoral woman whose many affairs
appeared symptomatic of American's Sex Revolution." A group of
radical feminists offered to identify Alice's cause with their
own, but she declined their help. Between these two wings of
public opinion there was a dominant vision of Alice as a
man-hunting cocktail waitress, and her longer years as housewife,
mother and secretary receded into the background.
prosecution case was presented for the most part by James Mosley's
aspiring young assistant, Anthony Lombardino, but Mosley himself
scored the first important point while questioning Dr. Milton
Helpern. The forensic expert testified that the discovery of as
much food as was found in Missy's stomach was consistent with a
post-ingestion period of less than two hours. If Helpern was
right, then assuming that Alice had been the last to feed the
children, she could not have seen them alive at midnight, as she
insisted that the prize job of examining the prosecution's star
witness, Joe Rorech, was his -- his alone. Since the police had
first enlisted Rorech's aid, Joe's difficulties had continued to
mount; his marriage was in trouble and he had been upset by a
brief period of arrest as a material witness. In his testimony he
made it plain that he had lost any vestige of loyalty to his
led by Harold Harrison, was unmoved when Rorech indirectly quoted
Alice, "She did not want Eddie to have the children. She would
rather see the children dead than Eddie have them." Harrison had
not heard this before, but he did not regard the statement
as damaging; surely the jury would understand that it was just the
kind of thing that a divorcing spouse was likely to say in the
heat of a custody battle. Rorech, though, had something more to
disclose that would change the course of the trial. Though the
police had learned nothing incriminating from electronic
eavesdropping, Joe testified to a long conversation with Alice at
a motel in Nassau County. After weeping inconsolably, she had said
again and again that the children "will understand, they know it
was for the best." At last she had added, "Joseph, please forgive
me, I killed her."
Stung by the
witness's words, Alice jumped out of her chair and banged her
fists on the defense table, crying, "Joseph! How could you do
this? This is not true! Joseph . . . you, of all people! Oh, my
God!" Harrison was unable to follow Alice's outburst with telling
cross-examination for he had no effective means of rebutting
Rorech's quotes. In fact, he may have been preoccupied by a
dilemma of his own: the next morning he went before Judge Peter
Farrell and unsuccessfully sought to withdraw from the case on the
grounds that prior to the trial had had represented Joe Rorech as
well as Alice, to whom Joe had introduced him.
Rorech's damning testimony, the appearance of Sophie Earomirski,
The Woman in the Window, came as an anticlimax. Sophie elaborated
the scene she had recalled in her anonymous letter by adding a
pregnant dog. She told the jury that the woman had responded to
her male companion's order to hurry by explaining that she was
waiting for the dog. She had said, "The dog is pregnant," and the
man had grumbled, "Did you have to bring it?" In fact, Brandy
was pregnant that night, but several witnesses swore that
nobody had recognized the pregnancy -- that when the dog produced
a single puppy the week after the killing, Alice and the neighbors
tried to destroy Sophie's credibility, but the scope of the attack
was narrowly limited by Judge Farrell. The judge excluded an
affidavit of Dr. Louis Berg to the effect that a head injury
suffered by Mrs. Earomirski at the World's Fair had resulted in
"permanent brain damage." Defence lawyer Marty Baron questioned
her about two suicide attempts, but to no avail: the courtroom
spectators cheered her recital that she had placed her head in an
oven to see how dinner was coming along. A press photograph
records Sophie's exit from the courthouse, her hand raised in
triumph like a triumphant boxer, still champion, on whom the
challenger could not lay a glove.
strategy of the defense was to put Alice on the stand to deny the
murder charge and to show that she was not made of granite, as
portrayed by certain sections of the media. When Baron's
questioning turned to the children, Alice began to tremble and
whispered to Judge Farrell that she could not continue. Farrell
declared a recess. When the trial resumed, Alice concluded her
testimony with a strong denial of Rorech's account of her
to permit Alice to testify gave prosecutor Lombardino the
opportunity he had been waiting for: to question her closely about
her love life. All the most titillating incidents were brought
out: the night Eddie had caught her in bed with the amorous waiter
Carl Andrade, an afternoon tryst with a buyer at the World's Fair,
a 1964 cruise with Tony Grace to the Democratic National
Convention in Atlantic City, and nude swimming at Joe Rorech's
home when, Lombardino was careful to stress, the children were
dead. To reporter Kenneth Gross it seemed that Lombardino had torn
away the last shred of Alice's dignity when he inquired whether
she remembered making love with her children's barber in the back
of a car behind the barbershop; Alice admitted having had ten
dates with the barber, but, straining at a gnat, couldn't recall
the incident in the car. Lombardino continued the catalogue of
Alice's conquests with obvious relish until the judge ordered him
ended after thirteen days on Monday, May 27, and early the next
morning the jury returned a verdict of guilty of manslaughter in
the first degree; one of the jurors said that a large majority had
voted for conviction on the first ballot, but that he had doubts
about the proof and did not regard her as a danger to society. At
her sentencing hearing, Alice protested her innocence and angrily
told Judge Farrell, "You don't care who killed my children, you
want to close your books. You don't give a damn who killed my
kids." The judge sentenced her to be confined in the New York
State prison for women at Westfield State Farms, Bedford Hills,
New York, for a term of not less than five nor more than twenty
conviction was far from the last chapter of the case. In December
1969 the Appellate Division of the New York Supreme Court, an
intermediate appeals court, ordered a new trial because three of
the jurors had secretly visited the scene of Sophie Earomirski's
identification of Alice. One of the jurors had made his visit
alone at about two in the morning, hoping to verify what Sophie
could have seen at that hour. The court reasoned that "the net
effect of the jurors' visits was that they made themselves secret,
untested witnesses not subject to any cross-examination." The
State's highest court, the Court of Appeals, agreed, ruling in
April 1970 that the unauthorized visits were inherently
prejudicial to the defendant, and adding, in a significant aside,
that the evidence of guilt was not so overwhelming that we can
say, as a matter of law, that the error could not have influenced
the verdict.' The Court noted that only two witnesses, Sophie
Earomirski and Joe Rorech, had directly implicated Alice, and that
Rorech's testimony was seriously challenged, and the witness was
subjected to searching cross-examination.'
When the case
was retried in 1971, a change in counsel and the presiding judge
and the cooling of community passions resulted in a more
restrained courtroom atmosphere. Gone from the prosecution team
was Tony Lombardino, replaced by Thomas Demakos, the experienced
chief of the District Attorney's trial bureau. The judge to whom
the second trial was assigned, George Balbach, planted court
attendants in the courtroom and adjacent corridors to assure
better order. Perhaps the most significant change was at the
defense table, where Herbert Lyon, a leader of the Queens trial
bar, now sat in the first chair. Lyon had devised a more
conservative defense plan that would place greater stress on
Alice's grief and loss and keep her off the witness stand so that
the prejudicial parade of her love affairs could not be repeated.
had been raised in the second trial, which began on Monday, March
15, 1971. As Alice's first jury had found her guilty of
manslaughter in the death of Missy, principles of double jeopardy
prohibited her from being charged with a greater offense against
her daughter, but the prosecution had compensated for that
limitation by obtaining an additional indictment for the murder of
young Eddie. Though the state of his remains ruled out proof of
cause of death, Demakos offered the evidence of Dr. Milton Helpern
that murder could be "inferred" because of the circumstances of
his sister's death. Joe Rorech, obliging as ever, adapted his
testimony to the new prosecution design; according to his revised
story, Alice had told him that she had killed Missy and
"consented" to the murder of her son.
presentation of defense evidence was already in progress when
Demakos, over vigorous objection by Lyon, was permitted to bring a
surprise witness to the stand. Mrs. Tina DeVita, a resident of the
Kew Gardens Hills development at the time of the crime, testified
that on the night of July 13/14, while driving home with her
husband, she had looked out of the driver's window from the
passenger's side and seen "people walking, a man carrying a
bundle, a woman, a dog, and a boy." The angry Lyon could not shake
Mrs. DeVita's story but did much to neutralize its impact by
introducing an unheralded witness of his own, Marvin Weinstein, a
young salesman from Massapequa, Long Island. Weinstein swore that
on the morning of July 14 he, together with his wife, son and
daughter, had passed below Sophie Earomirski's window on the way
to his car; he had carried his daughter under his arm "like a
sack" and they were accompanied by their dog -- who might well
have looked pregnant for she had long ago lost her figure. As a
final jab at the State's case, Lyon called Vincent Colabella, a
jailed gangster who had reportedly admitted to a fellow prisoner
that he had been Eddie's executioner, only to deny that report
when questioned by the police. On the stand Colabella chuckled as
he disowned any knowledge of the crime; he said that he had never
seen Alice Crimmins before.
closing argument, Lyon cited Sophie Earomirski's testimony that
she had been led to tell her story by the voices of the children
crying from the grave; if they were crying, Alice's defense lawyer
suggested, they were saying, "Let my mother go; you have had her
long enough!" Demakos had harsher words, reminding the jury of
Alice's failure to take the stand, "She doesn't have the courage
to stand up here and tell the world she killed her daughter."
Alice interrupted to protest, "Because I didn't!' but the
prosecutor went on without being put off his stroke, "And the
shame and pity of it is that this little boy had to die too."
deliberations began after lunch on Thursday, April 23 and ended at
5:45 p.m. on the following day. Alice was found guilty of murder
in the first degree in the death of her son and of manslaughter in
the strangling of Missy.
On May 13,
1971 Alice Crimmins was remanded to Bedford Hills prison, and
there she stayed for two years while her lawyers continued the
battle for her freedom in the appellate courts. In May 1973 the
Appellate Division ruled for a second time in her favor. The court
threw out the murder conviction on the grounds that the State had
not proved beyond reasonable doubt that young Eddie's death had
resulted from a criminal act. With respect to the manslaughter
count relating to Missy, the court ordered a new trial on the
basis of a number of errors and improprieties, including the
prosecutor's comment that Alice lacked the courage to admit the
killing of Missy: this argument amounted to an improper assertion
that the prosecutor knew her to be guilty and, in addition, was an
improper attack on her refusal to testify. Alice was freed from
prison following this ruling, but the rejoicing in her camp was
premature. The tortuous path of the judicial proceedings had two
more dangerous corners.
setback was suffered when the Court of Appeals in February 1975
announced its final decision in the appeals relating to the
verdicts in the second trial. The court sustained the decision of
the Appellate Division only in part; it agreed with the dismissal
of the murder charge but reversed the grant of a new trial in the
manslaughter conviction for the killing of Missy, returning that
issue to the Appellate Division for reconsideration. Explaining
the latter ruling, the Court of Appeals conceded that Demakos's
comment on Alice's refusal to testify violated her constitutional
privilege against self-incrimination. However, in seeming
contradiction of its skeptical view of the prosecution case in the
first trial, the court decided that the constitutional error was
harmless in view of the weighty evidence of Alice's guilt.
Division confirmed the manslaughter conviction in May 1975, and
Alice was once again sent back to prison to continue serving her
sentence of from five to twenty years. Persevering in his efforts
for her vindication, Lyon still had one card to play, an appeal
from the denial of his motion for retrial, based on newly
discovered evidence. A would-be witness, an electronics scientist
named F. Sutherland Macklem, had given the defense an affidavit to
the effect that, shortly after one o'clock on the morning of July
14, 1965, he had picked up two small children, a boy and a girl,
hitchhiking in Queens County. The boy had told him he knew where
his home was, and Macklem had let them out, safe and sound, at the
corner of 162nd Street and 71st Avenue. The affiant did not learn
the children's names, but stated that the boy could well have
identified his companion as "Missy" instead of "my sister," as he
had first thought. He admitted that he had identified his
passengers as the Crimmins children only after reading newspaper
accounts of the first trial, three years after the incident.
22, 1975, the New York Court of Appeals affirmed the trial court's
rejection of this defense initiative. The court was influenced by
the affiant's seven year delay in coming forward, and commented
scathingly that the affidavit "offers an imaginative alternative
hypothetical explanation [of the crime], worthy of concoction by
an A. Conan Doyle."
1976 Alice Crimmins became eligible for a work-release program and
was permitted to leave prison on week days to work as a secretary.
In August 1977 the New York Post reported that Alice had
spent the previous Sunday "as she has spent many balmy summer
Sundays of her prison term -- on a luxury cruiser at City Island."
(Under the work-release program, participants were allowed every
other week-end at liberty.) In July 1977, Alice married the
proprietor of the luxury cruiser, her contractor boyfriend,
Anthony Grace. The Post was indignant over the nuptials,
furnishing telephoto shots of Alice in a bikini and T-shirt, and
headlining a follow-up story with a comment of the Queens District
Attorney, "Alice should be behind bars!"
1977, Alice Crimmins was granted parole, after thirty months in
prison and nine months in the work-release program. When a new
petition for retrial was denied in November, she slipped into what
must have been welcome obscurity; she had become that stalest of
all commodities, old news.
case remains an intractable puzzle. In his opening argument in the
second trial, Herbert Lyon invited the jury to regard the case as
a troubling mystery that had not been solved. It is
always difficult to persuade the community to live at ease with an
unknown murderer, but never more so than when a child or spouse
has been killed and the evidence suggests that the household was
the scene of the crime or of the victim's disappearance. As in the
Lindbergh kidnapping or the murder of Julia Wallace, there is a
strong tendency to suspect an "inside job."
Crimmins, who slept close by but claimed to have heard nothing out
of the ordinary during the murder night, naturally came under
suspicion. She was a mother (perhaps harboring the nameless daily
hostilities familiar to the annals of family murder) and the only
adult living in the Kew Gardens Hills apartment, and she had the
opportunity to commit the crime -- but can anything more be said
to justify the certainty the investigators showed from the start
that she was guilty? If we reject the equation that the State of
New York made between sexuality and murderousness, it appears that
Alice displayed only one suspicious trait: despite her avowed
grief over her lost children, she does not seem to have shown much
interest in helping the authorities to identify the killer. Even
this curious passivity may have been due to the defensive posture
into which she was immediately thrust by police antagonism and
surveillance, and she may also have genuinely believed that the
murderer was not be found in her circle of acquaintances, however
wide and casual.
prosecution never attributed a plausible motive to Alice. The
presence of Missy and young Eddie in the apartment does not seem
to have inhibited Alice's amorous adventures, but if she found the
children to be under foot, she could easily have surrendered
custody to her husband. It was rumored that she had never liked
Missy much, that she had killed her in anger and then called for
underworld help to dispose of her son as an inconvenient witness.
Under those circumstances it is hard to visualize the boy going
willingly to his doom, a docile figure in the peaceful domestic
procession belatedly recalled by Sophie Earomirski in which the
murderers and their future victim were accompanied by a pregnant
dog. If the theory of sudden anger did not sell, the police
investigators were likely to fall back on Alice's own words, that
she would rather see her children dead than lose them to Eddie in
the pending custody battle. Alice enjoyed a tactical advantage as
a mother in possession of the children, and there is no reason to
conclude that, despite the lessened optimism she detected in her
lawyer's voice during their conversation before the children's
disappearance, the prospect was hopeless or that she thought so.
If the uncertainty of the divorce court's ruling provided a viable
motive, the police had as good a reason to charge Eddie with the
crime, but they never took him seriously as a suspect.
In the mind
of Joe Rorech, the theory of underworld involvement in the murder
of Alice's son took on an even more sinister tone. After the
second trial he told New York Post reporter George Carpozi
Jr. that Alice "had to have those children out of the way to avoid
the custody proceedings" that were to have been held on July 21,
1965. He spelled out his belief that Alice had arranged for three
of her girlfriends to sleep with a prominent New York politician,
who was afraid that the details of his indiscretion would come out
at the custody hearing. Therefore, the man, who was "deeply
involved in New York politics and relied almost solely on the
Democratic organization for his bread and butter," had called on
his gangland connections to eliminate the children, thereby
averting the hearing. Rorech had no satisfactory answer when
Carpozi asked him why the same objective could not have been
accomplished with less pain to Alice by the murder of her
estranged husband. Rorech's theory also fails to explain why the
politician's scandal was deemed more likely to be publicized in a
custody hearing than in the course of a murder investigation that
was bound to focus on Alice Crimmins and her florid love life.
If Alice was
in fact guilty, the reason for her crime must, despite the best
surmises of the police and Joe Rorech, remain wrapped in mystery.
Even more puzzling, though, is the autopsy evidence regarding
Missy's last meal, which raises doubts concerning the time and
place of the child's murder. This strange facet of the case was
prominently featured in the dissenting opinion rendered by Justice
Fuchsberg when the New York State Court of Appeals rejected
Alice's motion for a new trial in 1975. Justice Fuchsberg noted
that the testimony of the Queens medical examiner, Dr. Richard
Grimes, indicated that Missy had died shortly after ingesting a
meal including a macaroni-like substance that differed
substantially from the last dinner that Alice had told the police
she served the children. This evidence suggested to the judge that
"the child might have had another meal at some unknown time and
unknown place considerably after the one taken at home."
Crimmins have been so cunning a criminal planner as to have
created this enigma by lying to the police about the food she had
served on the night of the crime? Apart from the difficulty of
finding traits of calculation and foresight in her character, many
circumstances militate against the inference that the veal dinner
was a fabrication intended by Alice to mislead the investigation.
When she first mentioned the purchase of the frozen veal to
Detective Piering, neither of the children's bodies had been
found. If she was the murderer and had hidden the corpses, she had
reason to hope that they would long remain undiscovered. Even if
she feared the worst -- that the victims would soon be found -- it
seems doubtful that she was so familiar with the capabilities of
forensic medicine that she decided to turn to her own account the
possibility that an autopsy might be performed in time to analyze
the contents of the last meal.
have been a powerful deterrent to Alice's lying about the veal
dinner. She told Piering that she had purchased the veal on the
afternoon of July 13 in a neighborhood delicatessen; she was
presumably well known there, and the grocer who had waited on her
could very likely have contradicted her story. As events turned
out, the grocer did not remember what she had purchased, but she
could not have counted on that in advance.
Crimmins case is viewed with the hindsight of recent years -- when
a young mother with a strong sexual appetite is less likely to be
pronounced a Medea -- it seems that Alice is entitled to the
benefit of the Scottish verdict: Not Proven.
Essays of Albert Borowitz
Alice Crimmins Case
Genesis of a Sensation
The Alice Crimmins case broke in 1965 and grabbed
headlines for the next twelve years. Like Joey Buttafuco in the
1990s, the name of Alice Crimmins became, in the latter half of
the 1960s and most of the 1970s, synonymous with tabloid
real-life mystery has been dealt with in several works. It was the
subject of two true-crime books, Kenneth Gross’ The Alice
Crimmins Case and George Capozi, Jr.’s Ordeal By Trial.
It also inspired two best-selling novels. Both The
Investigation by Dorothy Uhnak and Where Are the Children?
by Mary Higgins Clark are thinly veiled fictionalizations of the
case. Where Are the Children? was Clark’s first published
mystery (she had previously authored a biography of George
Washington) and launched her prolific career in that genre. It was
made into a movie of the same title that was released in 1986. A
made-for-TV movie called A Question of Guilt based on the
Crimmins affair was aired in 1978. It starred Tuesday Weld at both
her most glamorous and most vulnerable. John Guare, author of the
theatrical hits Six Degrees of Separation and The House
of Blue Leaves, wrote a Crimmins inspired played called
Landscape of the Body that opened in 1977. Neal Bell authored
a play called Two Small Bodies that also opened in 1977. It
was made into a film by Beth B. in 1994.
that would transfix the public for over a decade involved a
previously obscure family with a sad but in many respects,
all-too-familiar family history. That family lived in the Queens
borough of New York City and consisted of airline mechanic Edmund
Crimmins, homemaker Alice Crimmins and their children, Eddie, Jr.,
aged five, and Alice Marie, always called Missy, four. Edmund
Crimmins was a six-foot-tall, sandy-haired and ruggedly handsome
man who was starting to get a paunch and double chin. He towered
over his wife Alice, a blue-eyed redhead with delicate features
who was both slim and buxom. As couples usually are, the two had
been very happy during the early years of their marriage.
However, that marriage had crumbled, in large part, because Eddie
spent very little time at home with his family; he preferred
working overtime or drinking with the boys. Lonely and
frustrated, Alice had found solace in a series of extra-marital
Their children have been described as well-behaved and cheerful
youngsters. The two sometimes sat on the windowsill of their
room, waving and saying “hi” to passersby. Unlike many children
who are born so close together, they did not seem much afflicted
by sibling rivalry. Missy was a “girly girl” and her chubby older
brother had adopted a protective attitude toward her, calling her
“my Missy.” One time another little boy pulled some hair from one
of Missy’s dolls. In a typically childlike way, Eddie interpreted
an offense against one of his sister’s toys as an attack on her
and he charged at the larger boy, shouting, “Don’t you ever touch
Don’t you ever touch my Missy!”
separated, Alice, who had previously been a full-time homemaker,
had gotten a job as a cocktail waitress. Also during their
separation, she had attended a bon voyage party – one that
led to her husband’s custody suit.
The party was
held on a boat and Alice had attended it with Anthony Grace, one
of her major boyfriends. He was a fifty-two-year old wealthy
building contractor who sported a pencil thin mustache and was
given to silk suits and a diamond pinky ring. Short and thickset,
he had many friends amongst prominent New York City politicians
and was rumored to have a few amongst its hoodlums.
Grace and the
other men had playfully locked the women in a washroom. Then the
boat set sail. Unable to get off it, Alice Crimmins found herself
on the way to the Bahamas at the very time when she should have
been going home to relieve her children’s babysitter.
babysitter called Edmund Crimmins who immediately came to pick his
kids up. He took them to the residence of his mother-in-law,
Alice Burke, and decided that he would file a suit for their
custody. “You’re not fit to bring up those kids!” he angrily told
The trial for
that suit was only a week away. Her attorney had told her to
expect a court agency inspection in connection with it, so Alice
had spent much of the previous evening doing a lot of
housecleaning and fixing up.
However, on that hot, sunshiny morning of July 14, 1965 she found
little Eddie and Missy were not in their rooms. She made a frantic
phone call to Edmund who strongly denied taking them, then went
over to her place to help her look. Unable to find them, he called
police to report that his children were missing.
Catholic Cop and the Made-Up Mom
At the station house, one detective immediately
wanted the case of the missing children. He was Detective Gerard
H. Piering, a thirty-something father of six who sported an
out-of-style crew cut and yearned to make second-grade detective.
He and his more easygoing partner, George Martin, met both parents
at the mother's residence.
residence was a ground-floor apartment in a working-class
development of red brick called the Regal Garden Apartments. The
Crimmins’s home was modestly furnished but neatly kept.
The window of
the children's room was wide open, and a carriage was underneath
the window. It appeared that Missy and Eddie had either been
enticed out of the window or, as they had done before, crawled
outside on their own.
saw Alice Crimmins, the strait-laced Roman Catholic was instantly
taken aback: her children were missing yet this mother was neither
sobbing nor hysterical. Rather, she was heavily made-up and
sharply dressed, looking chic and sensuous in tight toreador pants
and a flower-print shirt and high-heeled white shoes. Her short
red hair was elaborately teased. By his own recollection, Piering
disliked her on sight, thinking, "she looks like a cold bitch to
me." He told Martin, “You interview the guy. I’ll take the
Missy Crimmins was discovered a few hours later in a vacant lot.
She had been strangled to death. Detective Piering was informed
that the body of a little girl matching Missy’s description had
been found but did not immediately inform the parents of the
daughter’s death. Rather, he decided to give the mother whom he
suspected a sort of “test.”
The Puzzle of Personality
Taken to the vacant lot without knowing in advance
what she was going to see, Alice was escorted directly to the
corpse of her four-year-old daughter. Tiny Missy, a
delicate-featured blonde, lay on her side. The girl was dressed
in a white T-shirt and yellow panties. A blue flower-patterned
pajama top was ominously wound and knotted about the child’s neck.
swooned and Piering caught her. “It’s Missy,” she mumbled.
had to be assisted back to the unmarked police cruiser. However,
she did not cry, a fact that struck the detectives as damning.
Indeed, all during the drive back home, this mother – who had just
suffered what would be, to a normal person, the most grievous loss
imaginable – shed no tears. Rather, she sat in the car, staring
into the distance and answering questions in a flat,
At her home,
she stepped into a swarm of photographers’ lights popping off in
her face – and suddenly started sobbing.
it in the minds of the investigating officers. Alice Crimmins did
not care about her children. Her swooning at her dead daughter’s
side was theatrical; she only cried on camera in a calculated
attempt to simulate grief.
negative opinion of her would soon be reinforced the next morning
when she kept the officers who wanted to question her waiting
while she finished putting on her make-up. As Ken Gross wrote in
The Alice Crimmins Case, both police and public were
outraged at the idea that “a woman who was supposed to be in the
ultimate stages of grief and anxiety (her son was still missing)
was more concerned about her appearance!”
son’s badly decomposed body was found several days after his
sister’s body. Then, within a week of the funeral, Alice
Crimmins, mother of two small dead children, appeared to simply
resume her normal life. “Normal life,” in this case included not
just doing housekeeping chores and cooking for herself and her
husband – she and Edmund had reconciled – but evenings at bars and
nightclubs where she drank and danced the nights away.
behavior did indeed point, as so many believed, to an abnormally
callous mentality and one that was capable of murder. Then again,
all of it is subject to less sinister interpretations.
commonly accepted that shock can dam emotional expression.
Perhaps the visual flash of camera bulbs suddenly jolted it out of
Crimmins. Subsequent events would show Piering hasty in judging
the swoon as faked since Alice would show a tendency to faint
under most extreme pressure.
There is a
poignant explanation for her apparently obsessive concern with her
appearance. "It was an important part of her, the make-up," Gross
wrote, "Later it would be misunderstood, dismissed as cold
vanity. But the adolescent acne of her well-scrubbed Catholic
girlhood had burrowed into her a permanent feeling of
inferiority. It would take her the better part of an hour but
that great affliction of her acne-scarred complexion would be
disguised with expert care." Finally, her resumption of an active
nightlife and, soon after that, an active extra-marital sex life
might also be viewed as a coping mechanism. Just as she had
previously fought off loneliness through sensuality, so now she
tried to escape an overwhelming grief with the pleasures of the
Edmund Crimmins had his own share of peculiar personality traits.
Since their separation, he had installed a wiretap on her phone
and another wiretap from her bedroom to the basement so he could
listen to her making love to other men when he surreptitiously
entered the home. In one instance, he had been in the basement
while Alice was in bed with another guy. Edmund Crimmins had
burst into the bedroom and chased the lover naked into the street.
He would sometimes sneak into the home when he knew she was not
there simply to be around the items she owned.
disturbingly, he had told Alice that, during their separation, he
had once exposed his genitals to some little girls in a park.
Later, he claimed that he made up the story to ease Alice’s guilt
feelings about the demise of their marriage and make her think he
was as “bad” as she was. However, whether the story was true or
false, telling it certainly marks Edmund Crimmins as an odd man.
the cops saw Alice as the more sinister of the two.
Dust and Disputed Dinners
Part of the reason the police soon focused their
attention on Alice was that Detective Piering recalled seeing
things that threw her story into question and she remembered items
conflicting with other people’s reports.
first went into the children’s room to investigate, he moved a
lamp from the bureau over which the youngsters would have had to
scamper on their way out the window. In doing so, he says, he
noticed a thin film of undisturbed dust over the top of it because
the lamp itself left a clear round ring. However, Piering did not
order the photographer to record this vital evidence nor did he
even make a written note of it.
of the bureau showing a layer of undisturbed dust would be
especially welcome since that area had seen some action recently
whether or not the kids scrambled over it. During her
housecleaning, Alice had unbolted the screen because she had found
a hole in it, intending to replace it with the screen from her own
bedroom. However, she found a bit of dog excrement on that
screen. So she returned to the children’s room and put the screen
with the hole in it back in the window but did not refasten it to
its bolts. She simply propped it against the glass. Later, in
his frantic search for the children, Eddie Sr. had leaned out the
window to yell for them.
would later recall, Alice told him that she had fed the kids some
manicotti and he saw a slice of the same in the refrigerator and a
box of frozen manicotti in the trash. He did not save either bit
of evidence, have it photographed, or make a note.
Alice talked to other detectives, she said that the kids had eaten
veal that night. The autopsy showed that Missy’s stomach
contained pasta but no meat. Child molesters frequently pretend
to be children’s “friends” and caregivers. Could a pedophile have
fed the kids before murdering them? Stranger things have been
known to happen. Then again, perhaps Alice Crimmins was
other conflicts between her recollection of that fateful evening’s
events and those of others. She recalled getting gas for her car
at a Gulf station at 9:00PM on the fateful evening; the two
attendants remembered her being there around 5:00PM. However,
this was a matter that was, in and of itself, irrelevant to the
was the issue of the precise time Missy died. It was initially
determined by Dr. Richard Grimes, by the temperature of the deep
tissues of Missy’s body, that she had died at least six to twelve
hours before her body had been discovered and perhaps earlier than
that. The Medical Examiner’s office was headed byDr. Milton
Helpern, a respected coroner, and he had been present at the
little girl’s autopsy. He found that the child’s stomach was
quite full and concluded that she had died no more than two hours
after this meal.
that, on the fatal night, the family had eaten at 7:30PM and she
had checked on the children at midnight.
she lying? Was she mistaken? Or had the kids been kidnapped and
fed a last meal of macaroni before they were killed? The public
wondered and increasingly became critical of the authorities for
not bringing the killer of the Crimmins kids to trial as the
investigations continued for two more years.
Turning the Heat Up
During those years, the cops followed Alice
Crimmins constantly, watched her every move and – as her own
husband had – tapped her phone. They had good reason to expect
such activity to bear fruit. If Alice was the killer, she had to
have accomplices because the locations and times at which the
bodies were found meant that someone else had transported at least
one dead child (she had been under constant surveillance when
little Eddie’s body was unceremoniously dumped in a vacant lot).
Even if she was such a “cold bitch” that she never needed to
unburden herself to anyone, her co-conspirator(s) would surely
want to talk about payment or silence or both.
were no such conversations.
there was much to keep the police listeners entertained since
Alice Crimmins and her many sweethearts engaged in sexually
oriented conversations. The cops could count themselves doubly
lucky, even by today’s “dial-a-porn” standards, since they were
being paid to listen to titillating sex talk.
The cops also
waged a campaign of embarrassment and harassment against Alice
Crimmins in the hope that the tension might “break” her. During
the months that she and Eddie were reconciled, police phoned him
to let him know she was entertaining another man in the marital
bedroom. They went to her various employers and informed them
that the efficient secretary working for them under the name
“Alice Burke” was actually the notorious Alice Crimmins, a
promiscuous woman suspected in the deaths of her two young
children, leading to her sudden firing.
Alice Crimmins went from one employer to another, working for a
few weeks as a secretary here, a receptionist there, an airline
travel agent on one occasion and then, inevitably, unemployed and
looking for work again. She drank more heavily and became
increasingly hostile to the investigators she knew were trying to
pin a double murder rap on her. She learned that her phone was
tapped and began opening conversations with a message to the third
parties listening: “Hi, boys, drop dead!”
The Window Woman
Finally, more than a year and a half after the
Crimmins children were killed, the police believed they had an
important break in the case. Sifting through the multitude of
letters purporting to offer clues, they came across one dated Nov.
30, 1966 and addressed to then-District Attorney Nat Hentel that
said as follows.
reading about your bringing the Crimmins case to the grand jury
and am glad to hear of it.
May I please
tell you of an incident that I witnessed. It may be connected and
may not. But I will feel better telling it to you. This was on
the night before the children were missing.
But as the
press reported that a handyman saw them at the window that
morning, it may not be related at all.
The night was
very hot and I could not sleep. I went into the living room and
was looking out the window getting some air. This was at 2 a.m.
A short while later, a man and woman were walking down the street
toward 72 Road. The woman was about five feet in back of the
man. She was holding what appeared to be a bundle of blankets
that were white under her left arm and was holding a little child
walking with her right hand. He now hollered at her to “hurry
up.” She told him “to be quiet or someone will see us.” At that
moment I closed my window, which squeeks [sic] and they looked up
but did not see me.
The man took
the white bundle and he heaved it into the back seat of the car.
She picked up the little baby and sat with him in the back seat of
the car. This woman was then with dark hair, the man was tall,
not heavy, with dark hair and a large nose. This took place under
a street light so I was able to see it quite planly [sic]. The
car turned from the corner of 153 St. onto 72 Road and out to
forgive me for not signing my name, but I am afraid to.
the best of luck.
one hour later I thought I saw just the man getting into a late
model white car.
were both elated (they knew that the report of a handyman seeing
the kids at the window in the morning was unsubstantiated) at
receiving the letter and initially despairing at the probability
of finding its author.
found a clue in the phrase “down the street towards Seventy-Second
Road” that enabled them to narrow the search down to a reasonable
block of residences. They then reduced that to those not having
air conditioners beside their windows. The sleuths came up with a
possible thirty-nine apartments. Handwriting in the anonymous
letter was compared with samples of complaint letters from those
apartments leading them to Sophie Earomirski.
was a middle-aged, heavyset blonde who often suffered from
insomnia. When the investigators interviewed her, they found her
story somewhat revised from that in the fateful epistle. Sophie
told the police that she now recalled the woman saying, “My God,
don’t throw her like that.” While the letter described an
incident that “may be connected and may not,” Sophie now
identified the woman she had seen as Alice Crimmins. Earomirski
knew Alice from around the neighborhood and Alice’s photo was
regularly in the newspapers so it seems rather odd that, in the
letter, Earomirski saw her only as a woman “with dark hair” and
was uncertain as to whether the group she had seen was even
connected to the Crimmins case.
police were elated by Earomirski’s evidence and viewed it as just
what they needed to secure an indictment.
Earomirski’s story, the investigators put together a scenario of a
murderous mother aided by a man with mob ties. For some reason
Alice strangled Missy to death, they theorized. Perhaps Missy had
intruded on Alice when she and a boyfriend were going at it hot
and heavy. Alice had been murderously enraged and her horrified
lover had made a quick exit, never to be seen or heard from again.
Alice had told Piering that she had made a phone call to a bar
called the Capri’s that night and spoken to Anthony Grace. They
decided that that call must have been about Missy’s killing and
that Grace, eager to shield a ladylove from the results of her
impulsive actions, had placed a fatal call from that busy bar. He
had called a hoodlum and told the thug to go over to Crimmins’
place to silence little Eddie. Earomirski had seen a dead Missy
being carried in a blanket and her older brother obediently
trudging to his doom.
A Romeo Named Rorech
At the same time that investigators were tracking
down the writer of an anonymous letter, they were applying
pressure to Joseph Rorech, one of Crimmins’ major boyfriends.
muscular Rorech had chiseled features and wore his dark, wavy hair
combed straight back from his forehead. He was a high-rolling,
hard-drinking home repair contractor with a loud and blustery
manner who had lived a very compartmentalized life. There was the
devoutly Roman Catholic family man with seven children and the
compulsive womanizer. Far more secretly, he was a bisexual who
sought and enjoyed the company of men who cross-dressed.
At the time
of the Crimmins case, Joe Rorech was a man in serious trouble.
His business dealings were going sour and he was drowning in debt.
His long-suffering wife had a job selling encyclopedias
door-to-door. He had written a raft of bad checks to attempt to
hold off his creditors and was in serious legal trouble. Trying
to stay one step ahead of cops and creditors, he had taken to
using a variety of aliases.
case investigators put a wire on him to listen in to his
conversations with Alice but she said nothing indicating
culpability in the deaths of the children. The sleuths also
repeatedly interviewed him. He recalled Alice talking about the
custody suit and saying, “I’d rather see them dead than with
Eddie.” Had she actually murdered her kids so that her ex-husband
would not get custody of them? There were people willing to
believe so. However, the investigators realized that a jury could
regard this statement as hyperbole. Throughout several months of
intense drilling, Rorech denied that she had ever said anything
Then he received “immunity from prosecution for all crimes except
adultery and murder” and changed his mind, recalling that she had
told him something quite damning.
"Sexpot" on Trial
On September 11, 1967, two years and two months
after the deaths of little Missy and Eddie, Alice Crimmins was
arrested for the first-degree murder of her daughter. She was not
charged in her son’s death because it could not be medically
proven that he had been murdered.
especially the tabloid press, had a field day with the case.
Alice Crimmins was invariably called the “ex-cocktail waitress”
even though it was a position she had held for only a few months.
As Ann Jones has noted, the word was used “as a pejorative to
sneer at Alice Crimmins and a whole category of women workers at
once” despite her future attorneys sound judgment that “it was
actually a very hard job.” But people see the tight-fitting,
frilly outfit, not the constant waiting and serving.
sexual escapades were raked over for both their titillation value
and as a source of moral outrage. Front Page Detective
labeled her “Sexpot on Trial” and described her as “an erring
wife, a Circe, an amoral woman whose many affairs appear
symptomatic of America’s Sex Revolution.”
trial began in May, 1968 with Judge Peter Farrell, a long-nosed
man with thinning silver hair, presiding. It was sensational in
the extreme, partly because of the sex-related testimony and
partly due to Crimmins’s emotional outbursts.
who had first inspected Missy’s body when it was found in the lot
was named Richard Grimes. He testified: “I saw the body of a girl
who appeared to be about five years of age . . . She was clad in a
cotton undershirt, a pair of yellow panties—“
doctor’s recitation was broken by a shout from Alice Crimmins who
began to weep.
demanded order and told Dr. Grimes to continue. “Around the
little girl’s face there was a cloth tie,” Dr. Grimes said. “The
loose ends of the tie appeared to be the arm of some type of
garment. The tie was over the mouth of the child, the knot
encircling the neck, and the tie was rather loose. . . . “
Crimmins, supposedly a cold and unfeeling woman, wailed and sobbed
uncontrollably during this testimony. A few spectators started
crying with her and the judge put the court in recess.
kind of explosion from Alice took place during Joe Rorech’s
testimony. Rorech had to be repeatedly reminded to speak up as he
testified in what was, for him, an oddly subdued voice. He told
the packed courtroom that prior to the murders, Alice had
discussed Eddie’s custody suit and had speculated that she might
simply take off with them if she thought she might legally lose
them. He also repeated her statement that she “would rather see
them dead than with Eddie.” Later, he said that the two lovers
had been talking about the children and a teary-eyed Alice had
sadly said, “Joseph, please forgive me, I killed her.”
testimony, Alice Crimmins leapt to her feet and screamed,
“Joseph! How could you do this? This is not true! Joseph . . .
you, of all people! Oh, my God!”
Earomirski may have been the trial’s most dramatic witness. On
direct examination by prosecutor James Mosley, she told how she
had seen a woman carrying a bundle, a man, and a little boy on
that sleepless night at the window. “He took the bundle and he
swung the bundle under his arm . . . and he walked very quickly to
the car,” Earomirski testified as the courtroom listened in hushed
anticipation. “. . . he took this bundle and threw it in the back
seat of the car. She ran over to him and she said, ‘My God,
don’t do that to her.’ And then he looked at her and said, ‘Now
you’re sorry?’ and . . . she said, ‘Please don’t say that.’”
When asked if
she recognized the woman in the courtroom, Earomirski didn’t
hesitate. She pointed an accusing finger at Alice Crimmins and
said, “That’s the woman.”
jumped to her feet screaming. “You liar! You liar!” the
defendant thundered. “You liar! You liar! You liar! You liar!”
pounded his gavel and demanded Alice Crimmins get a grip on
of Crimmins’s attorneys, Martin Baron, tried to point out
inconsistencies between the story she related to this jury and
what she had told to the grand jury. However, Sophie was very
popular with the courtroom audience, most of who were strongly
convinced of Crimmins’s guilt. The spectators often laughed or
even applauded at her answers until the judge admonished them
that, “This is not the Hippodrome.” She held up well under
cross-examination and, during a court recess, triumphantly held up
her hands in a boxer’s salute.
Alice Takes the Stand
At her first trial, Alice Crimmins took the witness
stand in her own defense. She spoke in a thin voice that did not
carry well so the judge recessed the court until the next day so a
microphone could be installed in front of her.
her through her background and marital troubles. When the
questions turned to her children, Crimmins began to shake
uncontrollably and tears began streaming down her heavily made-up
face. Judge Farrell declared a recess but the trial had to be
postponed until the next day because Crimmins had fallen into a
the story she had told the police of her activities on the
terrible night her children disappeared. She strongly denied that
she had ever confessed killing Missy to Joe Rorech.
aggressively and belligerently cross-examined by prosecutor Tony
Lombardino. Due to the rules of evidence in New York courtrooms,
he had complete leeway to delve into anything that might reflect
adversely on her character even if it had no direct connection to
the issues at trial. He used that leeway to bring out every
possible detail of Alice Crimmins’s active love life. This was
1968 when the “sexual revolution” was in its infancy and the
working-class people of Queens were outraged by active non-marital
sex, especially by a woman. Some of their exchanges were quite
lurid. Lombardino established that Crimmins knew a fellow named
Carl Andrade and that he had visited her at 1:00AM during her
separation from Eddie when the children were in their room
Where specifically in your apartment was Andrade?
Where were you, Mrs. Crimmins?
the bedroom with him, sir.
see. Did your husband come into the apartment that morning? [As
previously noted, Eddie Crimmins was often, unknown to Alice, in
the basement of the home listening to her activities through the
wiretaps he had installed.]
Yes, he did.
What did he do when he got there?
weren’t doing anything at the moment.
You weren’t doing anything? How was Carl Andrade dressed?
was in a state of undress.
Will you tell the men of this jury panel what you mean by a state
Just what I said, sir. A state of undress.
What was your condition of attire?
was also in a state of undress.
Did your husband see Carl Andrade?
Yes, he did.
What did he do when he saw Carl Andrade.
They had a scuffle and Eddie chased him.
Was Andrade in a state of undress when Eddie chased him?
Yes, he was.
How did he get his clothing, Mrs. Crimmins?
got dressed and brought them out to him.
Where was he when you brought him his clothes?
particularly damaging exchange, Lombardino was able to juxtapose
the pitiful deaths of her children with the apparently callous
hijinks of their promiscuous mother.
Does Joe Rorech have a swimming pool?
Did you swim in it?
Yes, I did.
What were you wearing when you swam in Joe Rorech’s pool?
time, a bathing suit; one time, no bathing suit.
And where were your children while you were swimming in Joe
Rorech’s pool without a bathing suit?
CRIMMINS: They were dead.
Alice Crimmins left the stand on shaky legs. She knew that she
had damaged herself in the eyes of the conservative, old-fashioned
men who made up the jury and indeed, one of the jurors, Sam
Ehrlich, commented to another that, “A tramp like that is capable
Conviction, Collapse and a Fresh Start
summation to the jury, the prosecution hypothesized that Alice had
killed her daughter in momentary anger. The jury came back with a
verdict of guilty of first-degree manslaughter. The shock of the
verdict caused Crimmins to lapse into a coma. She was in the jail
hospital for two weeks after her conviction. Transferred to
prison, she became briefly hysterical, then appeared to settle
down into prison routine. She was assigned to secretarial chores
and, as she had in the free world, performed them in an excellent
were soon back in court asking for a mistrial. Three of the
jurors, one of them the Sam Ehrlich quoted above, had made trips
to the crime scene despite the judge’s warning that they were not
to visit it. The court denied the motion for a mistrial and
sentenced Crimmins to a prison term of from five to twenty years.
a new lawyer, Herbert Lyon, an attorney well-known and
well-respected in New York City. Many people were perplexed that
he took the case, however, because he was an expensive lawyer and
she was a pauper. Her family’s savings had been spent paying for
her first set of defense attorneys.
It turned out
that Lyon and his partner, William M. Erlbaum had taken on the
case for idealistic reasons: they were completely convinced of her
innocence and were working for her free of charge. Lyon asked a
Queens County Supreme Court judge for bail on the grounds that
there was a good chance the conviction would not stand. It was
granted and, after twenty-four days in prison, Alice Crimmins was
free. The appellate court did not get around to considering the
appeal until a year and four months later. They threw the
trial began in March 1971, six years after the deaths of the
Crimmins children. This time, the stakes were even higher than
they had been in the first trial for Alice had been indicted in
both deaths. She was charged with the first-degree murder of her
son Eddie and first-degree manslaughter in the death of Missy (the
earlier verdict in Missy’s case had in effect acquitted her of the
Public sentiment had shifted somewhat. Female promiscuity was no
longer as shocking as it had been only three years previously. The
women's liberation movement was a hot item in 1971, and some early
feminists as well as other observers believed that Crimmins was
being tried for her sex life and not for homicide. Not
surprisingly, Alice Crimmins, whose self-esteem was so intimately
tied to her appearance and who was so very dependent on men, was
far closer to Marabel Morgan than Gloria Steinem in her beliefs
about sex roles. Asked what she thought of feminism, she replied,
"Oh, I'm for equal pay for equal work but not for all the far-out
stuff. I don't hate men. I believe that women are put on this
earth to serve men. A man should be dominant. I believe in
women's liberation, but not at the price of my femininity.”
An Out-of-Control Defendant
This trial would become, as writer Ann Jones noted,
a “snarl of charge and counter-charge.” Moreover, the years of
her ordeal had taken a toll on Alice Crimmins. She remained a
shapely and attractive woman but she had a hunted, hounded look.
She also lost control of herself even more often during her second
trial than her first.
prosecutor Thomas Demakos was questioning prospective jurors, he
commented, “She is presumed to be innocent . . . but she is not
out, “I am too innocent! You know I’m innocent!”
bespectacled and balding Judge George J. Balbach told the
prosecutor to avoid making such assertions when he was
interviewing potential jurors.
other prosecutor Vincent Nicolosi said in his opening statement
that, on the last evening of their lives, their mother “fed them
manicotti.” Alice said, “I did not!”
Crimmins, now divorced from Alice, testified in this trial as he
had in the last. While he said nothing that implicated his
ex-wife, he stated that he had “no feeling for her really.”
Detective Piering testified, recalling the unrecorded dust on the
bureau and the vanished manicotti box in the trash as clearly as
before. This time, he added something previously unmentioned. He
claimed that Alice had told him that during the trip to the gas
station, “The children were acting up in the back of the car and
she swung and hit the girl.”
instantly on his feet, asking for a mistrial. He pointed out
correctly that it is not unusual for parents to use corporal
punishment but said that bringing it out in the trial was
prejudicial. His motion was denied.
took the stand and the prosecutor often seemed to be placing
Alice’s beau on trial, repeatedly asking Grace if she had
requested any “help” and if Grace had sent “anybody over to that
apartment that particular night.” Grace denied firmly that he had
had anything to do with the children’s deaths.
John Kelly testified that he had had a conversation with Alice
Crimmins about possible immunity in her son’s death and a good
“deal” on the charges relating to her daughter if she would “tell
the whole truth.” He said that she had told him she would “have
to talk it over” with her lawyer. He also testified that she had
complained about many of the prosecution’s witnesses lying in her
first trial. He recalled retorting, “If all those people lied,
why didn’t I lie?” She supposedly had told him, “Well maybe the DA
couldn’t make you lie.”
another Alice outburst: “But he did now!”
Sophie Earomirski gave dramatic testimony about the group that she
had supposedly seen from her window. Again she was asked to
identify the woman. “Alice Crimmins,” she replied.
Crimmins stood and shouted, “It is not! You liar! In God’s name,
tell the truth!”
gaveled for order and Crimmins continued screaming, “You liar!
You swore to tell the truth up there! Do you know what the truth
is? You’re so sick you don’t know how to tell the truth!”
judge called for Crimmins to get a grip on herself.
asked Earomirski, “Was it Mrs. Crimmins you saw out there that
“I swear to
God,” Earomirski replied.
Crimmins cried. “It wasn’t me! I didn’t do it! You don’t know
what God is!”
judge declared a recess.
Comedy in the Courtroom
Lyon attempted to cast doubt on the witness’
veracity by raising doubts about her mental health. He questioned
her about the accident at the World’s Fair, something which had
occurred only nine months prior to her fateful night at the
nothing to it,” Earomirski said. “I reached down to take my
pocketbook from the little bin and a mouse ran up my arm and I
mouse,” Earomirski replied nonplussed. “You know, a little itty
–bitty thing with a tail on it: a mouse.”
spectators and jurors rocked with laughter while the judge
brusquely called for order.
Asked if she
had reported the mouse was yellow, Earomirski replied, “Because
upstairs in the gourmet shop they had a giant cheese which all the
mice used to eat and the cheese was yellow and the mouse was
yellow. Yes, sir.” Earomirski smiled in delight at the titters
her story elicited.
that the time she had overdosed on tranquilizers was a suicide
out that her stomach had been pumped.
right,” a smiling Earomirski readily agreed. “And then I went
with my husband across the street to a diner and had a hamburger.”
questioned Earomirski about the extensive and dramatic dialogue
she testified that she had heard. He asked her to point to where
those people were and she indicated a spot one hundred and fifty
feet from her window. Lyon then showed a diagram from the first
trial in which Earomirski had placed the people some sixty feet
farther from her vantage point at her window.
speaking loud, were they yelling,” Lyon rather understandably
normal tones,” Earomirski replied.
“And from two
hundred feet away you heard them talking in normal tones?” Lyon
asked in amazement.
unusual,” Earomirski informed him. “My girlfriend, I hear from
the window when she asks me what I want from the store.”
where the girlfriend lived and Earomirski went to the diagram and
pointed to an apartment some two hundred feet away from hers.
acoustics carry differently in that area because we are downhill,”
Earomirski told him.
“And if your
girlfriend calls you in a normal tone from her window and you are
in your kitchen, you can hear her?”
course,” the unflappable Earomirski replied, as if it were the
most obvious thing in the world before again strutting in the
courtroom hallway with her hands clenched in a boxer’s salute.
The Surprise Witness
Once again Joe Rorech took the stand to claim that
Alice “said, ‘Forgive me, Joseph, I killed her.’”
Crimmins shouted, “You miserable, lying worm!”
said what he could not say at the first trial, when Crimmins was
being tried for the death of the girl only. Rorech stated: “She
then said, ‘I didn’t want him killed. I agreed to it.’”
witness soon appeared. As the courtroom listened in stunned
silence, a short and skinny housewife named Tina DeVita testified
that she had seen a group consisting of “a man carrying a bundle,
a woman, a dog, and a boy” walking on 150th Street in the area of
the Regal Gardens apartments. Alice Crimmins listened with
widened eyes and gasped as she heard this testimony.
recess, Crimmins approached reporters to make an obviously
desperate plea. “I’ve come here to make an appeal,” she began in
a shaky voice. Tears blurred her blue eyes. Alice Crimmins was
clearly terrified. “I’d like anybody that lived in my
neighborhood to come forward,” she said. “Anybody that lived in
my neighborhood who might know something about what happened on
the night of July 13th or the morning of July 14th. I am asking
for anyone that was out that morning between one thirty and two
thirty. Anybody that saw something – or didn’t see something. It
doesn’t make a difference either way because it’s just as
important to me if they didn’t see something or if they did see
something. They are coming with people for six years. Now, I
don’t know where these people are coming from. But I’m asking for
help from my side.” Crimmins voice cracked and it seemed like she
might collapse into sobs but she managed to choke out, “I need
that help because I did not kill my children. Anybody that just
didn’t see anything is just as important to me as someone who
might have seen something . . . I didn’t kill my children. I
swear I didn’t kill them.”
prosecutors were furious. Crimmins had been ordered by the court
to refrain from press interviews. The judge warned her lawyers
that if she broke that order again, Crimmins bail would be revoked
and she’d be slammed behind bars.
The next day
another surprise witness appeared. This time, it was the
prosecution side that was stunned by the testimony.
was Marvin Weinstein, a travel agency manager who claimed that he
had been walking on 153rd Street in the wee hours of July 14th of
1965. He had been visiting a friend named Anthony King.
“Who was with
you?” Lyon inquired.
“My wife, my
son, my daughter, and my dog,” Weinstein answered. He went on to
say that his son was three-and-a-half at the time and his daughter
was two years old. Weinstein had carried his little girl in his
arms wrapped in a blanket.
wife appeared in the courtroom and she bore more than a passing
resemblance to Alice Crimmins.
Alice Crimmins’ desperate gambit paid off? Many observers
believed so. After all, if the group seen by Earomirski and
DeVita was not Alice Crimmins and a shadowy hit man with a doomed
little Eddie and a dead Missy but the Weinstein family, the
primary basis upon which the prosecutors first drew up their
indictment so many years ago would collapse.
Who Was Lying?
Anthony King came into the court and said that the
Weinsteins had not visited him that night. Lyon cast doubt upon
King’s testimony by bringing out that he and Weinstein had once
been friends and business partners but were now personal enemies.
He then brought in a witness who told the court that King was a
Collabella, the gangster said to have been the hit man, was
brought into court by the Crimmins’s attorneys. Tall, handsome,
and swarthy, Collabella had a lengthy and serious criminal
record. The arrogant career criminal denied knowing Alice
Crimmins, Anthony Grace or even having ever been to Queens. The
prosecutors tore into him but were unable to get any sort of
admission out of him.
The trial was
winding down and the Crimmins’ attorneys were in a quandary.
Should Alice take the stand in her own defense? They knew that,
although they are admonished not to, juries hold it against
defendants when they remain silent. However, they also knew that
the last time she had been on the stand, she had been hammered at
because of her sex life and that that had, and probably would
again, prejudice a largely working class, middle-aged, and
asked for a meeting in the Judge’s chambers. He requested that
the justice rule that Alice could not be questioned about her
sexual history during cross-examination. The judge refused to do
so. Alice didn’t take the stand.
summation was eloquent and impassioned. He decried the
prosecution’s case as “a bunch of garbage.” He described Rorech
as a man scorned. “[Anthony] Grace replaced Rorech in Mrs.
Crimmins’ affections,” Lyon told the jury. “He can’t match
Anthony Grace in business and now he has lost out to him with Mrs.
“started this whole thing,” Lyon said. “And I’m going to finish
it. I don’t care if Mrs. Earomirski’s compensation case runs into
a big award. But I do care when it runs into a murder case.” He
pointed out the way her recollections dramatically changed from
the letter about “something that may not be connected at all,” and
noted that a doctor’s report said that Earomirski had “neurotic
tendencies to subconscious exaggeration.” He asked the jury to
ponder Earomirski’s bizarre assertion that she could hear people
talking in normal tones from two hundred feet away. “I don’t know
if you need a doctor to explain that kind of hearing,” he said.
“This is worse than the yellow
Lyon wound up with a moving plea on behalf of a client he strongly
believed had been grievously wronged. “Mrs. Earomirski said she
heard the children crying from their grave. If they are crying
from their grave, they are saying, ‘Let our mother go! You have
had her long enough. Six years of torture. In addition to loving
us, she is accused of killing us. Six years based on a letter that
comes anonymously, based on a snake who stings like a viper, and
based on a misconception of the analysis of the food.”
Demakos was no less passionate in his People’s summation. He told
the jury, “She doesn’t have the courage to stand up here and tell
the world she killed her daughter – “
didn’t kill my daughter!” Crimmins wailed.
“And the shame and the pity of it is that this little boy had to
die too,” Demakos said. He ridiculed the idea that she was being
persecuted. “If the people think that all the district attorney’s
office has to do is go out and frame a woman for publicity, then
God help this country of ours!
Shock and Aftermath
The jury came back with the harshest possible verdict: guilty of
first degree murder in Eddie, Jr.’s death and first degree
manslaughter in that of Missy. Many in the courtroom burst into
tears. Alice sobbed, “Dear God, no! Please, dear God!”
Alice Burke, wailed, “Sweet Jesus, no! Not again!”
her brother, said, “She didn’t kill her children. She didn’t kill
ex-husband Edmund Crimmins cried, “This isn’t justice,” as tears
streamed down his cheeks.
spectator, who had sent Alice a greeting card with the message,
“We’re with you, Alice” only the day before, shouted, “They ought
to kill the jury!” as he fell into tears.
appeared stunned in defeat, saying, “I guess I convinced everyone
but the jury.”
trial of Alice Crimmins ended and Crimmins went to prison for what
was assumed would be the rest of her life.
served more than two years behind bars when she was released in
1973. The Appellate Division of the Supreme Court in Brooklyn
reversed her conviction in Eddie Jr.’s case, ruling that there was
no evidence of murder. It also reversed the manslaughter
conviction in Missy’s case because Demakos' assertion that “she
doesn’t have the courage to stand up here and tell the world she
killed her daughter” suggested that a defendant who exercised the
right to refrain from testifying was admitting guilt.
appealed both rulings; in the meantime, Alice was free on $25,000
bail. Then in February 1975, the Court of Appeals upheld the
reversal of the murder conviction but reinstated the manslaughter
conviction and sent her back to prison.
Even that was
not the end of the Crimmins’ saga. In 1977, a New York tabloid
broke the story that she was participating in a work-release
program and, like other inmates in the program, she was allowed
every other weekend free. She had also been permitted to marry
newspaper showed Mrs. Alice Grace with her husband on board a
yacht. The next day its cover featured another picture of the
furloughed Mrs. Grace about to step into her husband's white
Cadillac. New York politicians cried out that she should not be
paroled but in Nov. 1977, after more than three years of
imprisonment, she was released. Although free, she still wanted
vindication, but her appeal for a new trial was denied and the
courts ruled that she could appeal no further.
Mystery Most Frustrating
A close, objective look at the matter shows that,
despite two convictions, the "guilt" of Alice Crimmins remains
problematic. For one thing, the case was "solved" with major
loose ends dangling. According to the prosecution's own theory of
the crime, the mother could only have murdered with the help of
at least two accomplices, yet no one else was ever even
charged, much less tried, in connection with the deaths.
At a time
when the issue of memory and its reliability is so prominent, when
"False Memory Syndrome" v. "Recovered Memory" is debated by
psychologists and the courts, the Crimmins case takes on a special
relevancy because the trustworthiness of the human memory played
an extraordinary role in it.
was the strange certainty of Alice Crimmins' own memory. She said
that she had fed her kids veal at 7:30PM on the evening of July
13, 1965. Then she had taken them for a ride, gassed up her car
at nine o'clock, returned home, and put them to bed. She looked
in on them at midnight and took little Eddie to the bathroom.
Missy had stayed in bed because she didn't have to go. After
returning the boy to bed, she attached the hook-and-eye latch that
she had put on the door. (This lock, Crimmins said, was to stop
the chubby boy from raiding the refrigerator at night. The cops
thought it was to prevent either child from walking in on their
mother when she was with a boyfriend.) Then she fell asleep in
her clothes, awakened, walked her dog, took a bath, and finally
retired for the night -- at four o'clock AM.
repeatedly about these mundane events, Crimmins remained
stubbornly positive. No, she could not possibly be off by, say,
an hour as to the time they ate. She checked on them at midnight,
no earlier, no later. When two gas station attendants said that
she had come to the station at five thirty PM, she called them
"liars," refusing to acknowledge that she might be in error about
a matter that was, in and of itself, irrelevant.
The veal or
macaroni question is one of the most troubling aspects of the
case. Many observers, including, most importantly, two juries,
have found Crimmins’ insistence that she fed her children veal and
the Medical Examiner’s failure to find meat in Missy’s stomach
utterly damning. However, one must ask why Crimmins would
make up such a story. As writer Albert Borowitz has noted, it is
highly unlikely that Crimmins knew enough about forensics to
deliberately create such an enigma. Furthermore, she specified
buying it that very day at a deli at which she was well known and
where her story could be checked out. As it happened, the deli
owner couldn’t remember what she had bought but there was no way
she could bank on that. Nor could she know that Piering would not
better preserve or record the crime scene.
Gerard Piering was so confident of his memory that he "forgot"
more substantial methods of evidence gathering like taking
photographs, making notes, or just preserving it.
and Sophie Earomirski also had fascinating memories.
In the first
trial, Rorech testified that his ex-girlfriend had confessed, "I
killed her." Since Crimmins was accused of killing her daughter
only, tying her to the death of her son would have been grounds
for a mistrial. Thus, if she had told him," I killed my kids," it
would have been inadmissible.
If she had
confessed to the killing of Missy only, Rorech would have been of
no extra value in the second trial. But he testified at that
event that Alice Crimmins had told him, "Forgive me, Joe, I killed
her" and "I didn't kill want him killed. I agreed [to it]." This
precise wording that Crimmins used, at least as he remembered the
conversation, gave Rorech's testimony maximum prosecutorial impact
at both events.
The memory of
Sophie Earomirski seemed to grow with time. In her initial
epistle, she said she had seen something "which may be connected
or then again it may not.” By the time she testified before a
grand jury, Sophie Earomirski not only knew with certainty that
the woman was Alice Crimmins but recalled dramatic dialogue – even
though she had heard it from some two hundred feet away.
there is something inherently fishy about that family grouping.
Albert Borowitz asks if, having just witnessed his sister’s death,
little Eddie would so very passively have gone to his own.
Perhaps it is even more unbelievable that he would not have shown
more concern for the “bundle” that his mother carried. At five
years old, he would not have developed the defense mechanism
against emotional displays that most adult males – and some
females like Alice Crimmins herself – acquire. Wouldn’t he have
been crying in his grief? Wouldn’t he have been demanding to hold
the little sister he loved so dearly and so protectively?
Crimmins "railroaded"? Not quite. As Ann Jones wrote, "She was
granted no presumption of innocence." The common prejudice
against sexually adventurous women tipped the scales of justice
toward conviction and blackened her name. While she lives out the
rest of her life in freedom and anonymity as well as -- perhaps --
the material comfort and security of her second husband's
affluence, in the annals of murder cases, she remains "Alice
There is a crying need for closure and solution when an outrage
has been committed and that is especially true when the victims
are children. However, to those who take the time and trouble to
familiarize themselves with the details of the Crimmins case, the
deaths of little Eddie and Missy remain that most frustrating of
puzzles, an intractable mystery.
Court of Appeals of New York
36 NY2d 230
The People of the State of New York, Appellant,
Alice Crimmins, Respondent.
Argued January 8, 1975
Decided February 25, 1975
OPINION OF THE COURT
On this appeal we are called on principally to
consider the doctrine of harmless error as applied to errors which
occurred on defendant's second trial. In this case a mother was
charged with criminal responsibility in connection with the deaths
of her son and her daughter. On her first trial defendant was
charged only with the death of the daughter and was convicted of
manslaughter. On appeal this conviction was reversed and a new
trial was ordered. (People v. Crimmins, 33 A D 2d 793,
affd. 26 NY2d 319.) On her second trial the jury convicted
defendant of murder of her son and manslaughter of her daughter.
The Appellate Division then reversed the conviction of murder of
the son and dismissed the charge against defendant with respect to
his death. (People v. Crimmins, 41 A D 2d 933.) As to the
manslaughter conviction, the Appellate Division also reversed
defendant's conviction but ordered a new trial with respect to her
responsibility for the death of her daughter. The case is now
before us on appeal by the People.
The procedural aspects of this appeal and of
our dispositions of its several branches call for exposition. The
ultimate issues turn on the procedural significance and
consequences properly to be attached to errors of law which
occurred during the second trial. We conclude that these errors
fall into separate categories calling for different legal results.
I. As to defendant's conviction of murder of
her infant son:
The Appellate Division's reversal of this
conviction (as distinguished from that court's attendant dismissal
of this count in the indictment) was explicitly recited to be "on
the law and [*236] the facts". An appeal may be taken to our court
only where the reversal is expressly stated to be on the law
alone; accordingly an appeal from this reversal may not be taken
to our court (CPL 450.90, subd. 2, par. [a]).
By contrast, the corrective action directed by
the Appellate Division in consequence of its reversal of the
murder conviction, i.e., the dismissal of the murder count, is
subject to an appeal to and review by our court (CPL 450.90, subd.
2, par. [b]). We find that corrective action to have been what was
required by the Criminal Procedure Law. The reversal of the
conviction was based on the conclusion of the Appellate Division
that, as a matter of law, the People did not prove that the son's
death resulted from a criminal act and, in the alternative, that
any finding that it did would be contrary to the weight of the
evidence (41 A D 2d 933). CPL 470.20 (subd. 2) mandates dismissal
of the accusatory instrument in the event of reversal of a
judgment after trial for legal insufficiency of trial evidence;
subdivision 5 of the same section mandates the same corrective
action where the reversal is on the ground that the verdict is
against the weight of the trial evidence. Accordingly the
Appellate Division's dismissal of the murder count with respect to
the death of the son must be affirmed.
II. As to defendant's conviction of
manslaughter in the homicide of her infant daughter:
The Appellate Division determined that because
of errors committed on the second trial this conviction should be
reversed. Because such determination was expressly stated to be on
the law alone, that aspect of the present appeal, as well as the
associated corrective action directed by the Appellate Division,
is properly before us (CPL 450.90, subd. 2, pars. [a], [b]). For
reasons discussed below, a majority of our court is of the view
that this determination of the Appellate Division should itself be
reversed. In that circumstance, since the order of the Appellate
Division reversing the manslaughter conviction was based on the
law alone, the provisions of CPL 470.40 (subd. 2, par. [b])
dictate that the manslaughter conviction be remitted to the
Appellate Division for determination of the facts. Presumably
consideration will then be revived, too, as to defendant's
separate and distinct appeal from the order of Supreme Court
[*237] denying her motion for a new trial on the grounds of
newly-discovered evidence and of improper conduct by the
prosecutor in withholding from defendant information potentially
helpful to her defense. In view of the other determinations made
at the Appellate Division in the order from which appeal is now
being taken it was not then necessary formally to reach or dispose
of defendant's contentions with respect to denial of her motion
for a new trial. Defendant now becomes entitled to consideration
and disposition of such contentions by that court.
We turn then to a discussion of our reasons for
concluding that the reversal of the manslaughter conviction should
A. As to the constitutional error:
The People concede that the comment of the
prosecutor in summation with respect to defendant's failure to
testify on her own behalf was improper and constituted
constitutional error under the provisions of both the Federal and
our State Constitutions (U. S. Const., 5th Amdt.; N. Y. Const.,
art. I, § 6). All of the members of the court agree that such
error calls for reversal and a new trial unless it was harmless
under the test for harmless constitutional error laid down by the
Supreme Court of the United States, namely, that there is no
reasonable possibility that the error might have contributed to
defendant's conviction and that it was thus harmless beyond a
reasonable doubt (Chapman v. California, 386 U. S. 18;
Fahy v. Connecticut, 375 U. S. 85).
We of the majority are satisfied that this test
is met here in view of the circumstances in which the
constitutional error occurred — inter alia, the unsworn
outbursts by defendant herself which both preceded and followed
the prosecutor's error, the comments of defense counsel and the
reactions in the courtroom at the time, and the explicitly clear
instructions of the trial court — coupled with what, as indicated
below, we think was the overwhelming proof of defendant's guilt.
Although in our view this case presents no
appropriate instance for its application, our discussion of the
effect to be given constitutional error should not overlook a
parallel, and in some instances an overlapping doctrine, also of
constitutional [*238] proportion, namely, the right to a fair
trial. Not only the individual defendant but the public at large
is entitled to assurance that there shall be full observance and
enforcement of the cardinal right of a defendant to a fair trial.
The appellate courts have an overriding responsibility, never to
be eschewed or lightly to be laid aside, to give that assurance.
So, if in any instance, an appellate court concludes that there
has been such error of a trial court, such misconduct of a
prosecutor, such inadequacy of defense counsel, or such other
wrong as to have operated to deny any individual defendant his
fundamental right to a fair trial, the reviewing court must
reverse the conviction and grant a new trial, quite without regard
to any evaluation as to whether the errors contributed to the
defendant's conviction. The right to a fair trial is self-standing
and proof of guilt, however overwhelming, can never be permitted
to negate this right. There is no predicate here, however, for any
claim that this defendant on her second trial was deprived of any
such basic right.
B. As to the nonconstitutional errors:
For the purposes of our disposition of this
appeal we assume, although each of the Judges in the majority
would not necessarily so decide, that the Appellate Division was
correct in concluding that in the circumstances of this trial: (1)
it was error to permit introduction of testimony with respect to
the witness Rorech's having been given a sodium pentothal (truth
serum) test (although nothing was said as to any results thereof);
(2) it was error to permit the prosecutor to elicit testimony in
cross-examination of defendant's witness Colabella that the latter
had refused to sign a waiver of immunity when questioned by the
prosecutor during the pretrial investigation of the case; and (3)
it was error, after the prosecutor had put before the jury an
apparently damaging admission by Colabella to one Sullivan but had
thereafter failed to call Sullivan or to explain the failure to do
so, for the trial court to deny defendant's request for a charge
that the jury could draw an unfavorable inference from the
People's failure to call Sullivan as a witness. None of these
errors, however, was of constitutional dimension. [*239]
We turn then to the question whether any one of
such errors, or all taken in combination, calls for a reversal of
the jury verdict here.
The definition and elaboration of the doctrine
of harmless error as applied to nonconstitutional error involve
peculiarly questions of the law of the State of New York to be
determined by our State courts. The doctrine has received
expression in our court over the last 20 years in various forms,
accompanied usually explicitly, always at least implicitly, by a
recognition that "[e]rrors are almost inevitable in any trial,
improprieties almost unavoidable, [and that] the presence of one
or the other furnishes no automatic signal for reversal and
retrial" (People v. Kingston, 8 NY2d 384, 387).
Examination of the language chosen to describe
the doctrine and its application in individual cases, as well as
analysis of the authorities selected for citation, discloses that
we have not always been either consistent in our classification or
uniform in our expression. Forms of our verbalization of the
doctrine cannot be nicely harmonized. Often there has been no
expilcit recognition that there is a distinction between
constitutional and nonconstitutional error; citations and verbiage
have frequently been indiscriminately interchanged. On the other
hand, we have never expressly held, as the dissent now urges, that
there is no difference in the application of the doctrine of
harmless error between constitutional and nonconstitutional error.
When we have reached the conclusion that the error was harmless we
have stated the rule loosely, in terms relatively easily
satisfied. On the other hand when we have concluded that the error
was not harmless our statement has been of a tight, demanding
rule. The ultimate result in the individual case has been more
significant than the particular formulation of the rule. (For
cases decided in recent years see People v. Brosnan, 32
NY2d 254, 262; People v. Stanard, 32 NY2d 143, 148;
People v. Steiner, 30 NY2d 762, 763-764; People v.
Crimmins, 26 NY2d 319, 324-325; People v. Baker, 26
NY2d 169, 174; People v. McKinney, 24 NY2d 180, 185;
People v. Pelow, 24 NY2d 161, 167; People v. Miles, 23
NY2d 527, 544; People v. Mirenda, 23 NY2d 439, 446-447;
People v. Cefaro, 23 N Y 2d 283, 290; People v. Savino,
22 NY2d 732, 733; People v. Adams, 21 NY2d 397, 402;
People v. Fein, 18 NY2d 162, 175; People v. [*240]
Donovan, 13 NY2d 148, 153-154; People v. Duncan, 13
NY2d 37, 42; People v. Rosenfeld, 11 NY2d 290, 299-300;
People v. Rosario, 9 N Y 2d 286, 290-291; People v.
Steinhardt, 9 NY2d 267, 271-272; People v. Kingston, 8
NY2d 384, 387; People v. Jackson, 7 NY2d 142, 145;
People v. Dziobecki, 3 NY2d 997, 999; People v. Ochs, 3
NY2d 54, 57; People v. Savvides, 1 NY2d 554, 557, 558;
People v. Mleczko, 298 N. Y. 153, 162- 163.)
The presently applicable legislative statement
of our State's rule, like its predecessor, has not been helpful.
"An appellate court must determine an appeal without regard to
technical errors or defects which do not affect the substantial
rights of the parties" (CPL 470.05, subd. 1). The choice of the
adjective "technical" in referring to errors may be said to
connote those of a formalistic or minor character. On the other
hand, to refer to errors which may affect "substantial" rights
suggests errors of a somewhat more serious nature. Notably there
has never been incorporated in the statutory language any concept
of "harmlessness beyond a reasonable doubt". In any event, our
decisions have not turned on or even been significantly affected
by the legislative diction of present CPL 470.05 (subd. 1) or of
section 542 of the former Code of Criminal Procedure.
It is appropriate therefore to recognize and to
delineate the difference between the Federal harmless error rule
with respect to constitutional error and our State's harmless
error rule with respect to nonconstitutional error.
Two discrete considerations are relevant and
have combined in varying proportions to produce specific results
in particular cases. The first of such factors is the quantum and
nature of proof of the defendant's guilt if the error in question
were to be wholly excised. The second is the causal effect which
it is judged that the particular error may nonetheless have had on
the actual verdict.
It appears that it is the latter consideration which is critical
in the application of the Supreme Court test as to harmlessness of
constitutional error. Thus, however [*241] overwhelming may be the
quantum and nature of other proof, the error is not harmless under
the Federal test if "there is a reasonable possibility that the
*** [error] might have contributed to the conviction" — perhaps
the most demanding test yet formulated (Fahy v. Connecticut,
375 U. S. 85, 86, supra.; Chapman v. California, 386 U. S.
Our State rule to determine harmlessness of
nonconstitutional error is not the same as the Federal rule.
The ultimate objective, grounded in sound
policy considerations, is the wise balancing, in the context of
the individual case, of the competing interests of the defendant
and those of the People. "While we are ever intent on safeguarding
the rights of a defendant *** we recognize at the same time that
the State has its rights too" (People v. Kingston, 8 NY2d
384, 387, supra.;). Thus, it does not follow that an otherwise
guilty defendant is entitled to a reversal whenever error has
crept into his trial. On the other hand, we recognize that a
finding that an error has not been harmless does not result in
fatal consequences to the People; they are put to a new trial, but
the defendant does not go free.
Our State test with respect nonconstitutional
error is not so exacting as the Supreme Court test for
constitutional error. We observe that in either instance, of
course, unless the proof of the defendant's guilt, without
reference to the error, is overwhelming, there is no occasion for
consideration of any doctrine of harmless error. That is, every
error of law (save, perhaps, one of sheerest technicality) is,
ipso facto, deemed to be prejudicial and to require a
reversal, unless that error can be found to have been rendered
harmless by the weight and the nature of the other proof. That
"overwhelming proof of guilt" cannot be defined with mathematical
precision does not, of course, mean that the concept cannot be
understood and applied in individual cases, although not always
without some difficulty. It surely does not invite merely a
numerical comparison of witnesses or of pages of testimony; the
nature and the inherent probative worth of the evidence must be
appraised. As with the standard, "beyond a reasonable doubt",
recourse must ultimately be to a level of convincement. What is
meant here, of course, is that the quantum and nature of proof,
excising the error, are so logically compelling and [*242]
therefore forceful in the particular case as to lead the appellate
court to the conclusion that "a jury composed of honest,
well-intentioned, and reasonable men and women" on consideration
of such evidence would almost certainly have convicted the
If, however, an appellate court has satisfied
itself that there was overwhelming proof of the defendant's guilt,
its inquiry does not end there. Under our system of justice a jury
is not commanded to return a verdict of guilty even in the face of
apparently conclusive proof of the defendant's guilt. Similarly it
may and often does exercise a positive sense of moderating mercy.
Further inquiry must accordingly be made by the appellate court as
to whether, notwithstanding the overwhelming proof of the
defendant's guilt, the error infected or tainted the verdict. An
evaluation must therefore be made as to the potential of the
particular error for prejudice to the defendant. We hold that an
error is prejudicial in this context if the appellate court
concludes that there is a significant probability, rather than
only a rational possibility, in the particular case that the jury
would have acquitted the defendant had it not been for the error
or errors which occurred.
Turning then to the record now before us, we of
the majority conclude that, excising both the evidence erroneously
admitted (with respect to Rorech's taking a truth test and as to
Colabella's refusal to sign a waiver of immunity) and the
prosecutor's interrogation of Colabella (as to the latter's
damaging admission to Sullivan), there was overwhelming proof that
this defendant was guilty of manslaughter in the death of her
daughter. In addition to other compelling circumstantial evidence,
there was eyewitness testimony (unavailable to support the
conviction on the first trial because it had been infected by the
wholly improper visit of jurors to the scene) that on the night
before the daughter's body was found, defendant, carrying what was
described as a "bundle" and accompanied by an unidentified man,
was seen leading her son from the Crimmins home; that as the man
threw the "bundle" into a parked car defendant cried out, "Please
don't do this to her", to which the man responded, "Does she know
the difference now? *** Now you're sorry." Additionally defendant
herself later confessed her guilt to her paramour — "Joseph,
[*243] forgive me, I killed her." On the other hand the
description which defendant offered of the events of the evening
preceding the children's disappearance was completely discredited
and the prosecution conclusively exploded defendant's theory of an
outside kidnapper. We read this record as leading only to a
single, inexorable conclusion, as two juries have indeed found:
defendant was criminally responsible for the death of her
Proceeding further, then, as we must, we also
conclude that in the circumstances of this case there is no
significant probability in the light of the overwhelming proof
that, had it not been for the errors which occurred, this jury
would have acquitted the defendant or that a third jury might do
so. Our ultimate conclusion, therefore, is that under our State
rule the nonconstitutional errors which occurred on this
defendant's second trial were harmless.
The order of the Appellate Division with
respect to the manslaughter conviction should accordingly be
reversed, and the case remitted to the Appellate Division for
determination of the facts in conformity with CPL 470.40 (subd. 2,
(Concurring in part and dissenting in part).
I agree with the court's disposition of the
appeal from that portion of the order of the Appellate Division
which reversed defendant's conviction of the murder of her infant
son and dismissed that count of the indictment.
With respect to the manslaughter count, I would
affirm the order of the Appellate Division. There is reason for
grave concern because of the rule formulated by the majority for
the review of "nonconstitutional" errors and its application to
As to errors of constitutional dimension, the
majority recognizes the standard of Chapman v. California,
(386 U. S. 18, 24), that before a constitutional error can be held
harmless the court must be able to declare a belief that it was
harmless beyond a reasonable doubt. This standard is followed by
the declaration of "a parallel, and in some instances an
overlapping [*244] doctrine, also of constitutional proportions,
namely, the right to a fair trial," such that "if in any instance,
an appellate court concludes that there has been such error of a
trial court, such misconduct of a prosecutor, such inadequacy of
defense counsel, or such other wrong as to have operated to deny
any individual defendant his fundamental right to a fair trial,
the reviewing court must reverse the conviction and grant a new
trial, quite without regard to any evaluation as to whether the
errors contributed to the defendant's conviction" (emphasis
supplied) (p. 238). As to "nonconstitutional errors", the majority
establishes (p. 242) the further precept that, if "an appellate
court has satisfied itself that there was overwhelming proof of
defendant's guilt," further inquiry must be made by it "as to
whether *** the error infected or tainted the verdict" and "an
error is prejudicial in this context if the appellate court
concludes that there is significant probability, rather than only
a rational possibility, in the particular case that the jury would
have acquitted the defendant had it not been for the error or
errors which occurred."
While the effort to harmonize the
Constitutions, the statute and judicial pronouncements and to
render a yardstick to guide courts in the conduct of criminal
trials and in reviewing alleged errors therein is creditable, it
is urged respectfully that the majority's opinion does not
accomplish that result. To begin with, what has evolved is indeed
a trifurcated standard for appellate scrutiny. There is a fork of
error "harmless beyond a reasonable doubt" as to "constitutional"
deprivations, another "also of constitutional proportion, namely,
the right to a fair trial *** quite without regard to any
evaluation as to whether the errors contributed to the defendant's
conviction" (pp. 237-238) and a third with a test of "significant
probability" applicable to nonconstitutional errors. This
three-pronged measure will be difficult to administer and apply
and, instead of clarity, confusion comes forth.
Although the decision of the Supreme Court in
Chapman did not purport to establish a harmless error rule
for application to all errors, there are strong reasons for
applying the "harmless beyond a reasonable doubt" standard to all
errors affecting the substantial rights of a party which arise
under the State Constitution or State law, as well as to those
which [*245] emanate from the Federal Constitution. Such a rule
would not be inconsistent with the mandate of CPL 470.05 (subd.
1), which merely directs an appellate court to determine an appeal
without regard to technical errors which do not affect the
substantial rights of the parties.
First, if the nature of the error is
constitutional, it is going to be difficult, if not impossible, to
determine which test shall be applied. Should it be according to
the Chapman scale where "the court must be able to declare
a belief that it [the constitutional error] was harmless beyond a
reasonable doubt"? Or, should there be a weighing to ascertain if
there has been a "full observance and enforcement of the cardinal
right of a defendant to a fair trial *** quite without regard to
any evaluation as to whether the errors contributed to the
defendant's conviction"? (p. 238). Although it is obvious that the
criteria are not the same, the majority does not supply the
Second, to establish a coexisting rule that
where there has been denied to "any individual defendant his
fundamental right to a fair trial, the reviewing court must
reverse the conviction and grant a new trial, quite without regard
to any evaluation as to whether the errors contributed to the
defendant's conviction" (p. 238) is incongruous, since generally
one of the most significant inquiries to be made in ascertaining
whether a fair trial has been accorded a defendant concerns the
effect of any error, misconduct, inadequacy or wrong upon the
verdict. Such a rule would unnecessarily place in jeopardy a host
Third, it is apparent from a reading of
Chapman v. California (386 U. S. 18, 24, supra.;) that the
test of "harmless beyond a reasonable doubt" was adopted as a
corollary to the reasonable doubt standard applicable to criminal
cases. By adopting a test regarding so-called "nonconstitutional"
errors which requires "a significant probability *** that the jury
would have acquitted defendant had it not been for the error or
errors which occurred" (p. 242), the court is dangerously diluting
the time-honored standard of proof beyond a reasonable doubt which
has been a cornerstone of Anglo-Saxon criminal jurisprudence. No
one would dispute the statement that a defendant in a criminal
case has a constitutional right [*246] to be proven guilty beyond
a reasonable doubt before he is deprived of his life, liberty or
property (U.S. Const., 5th Amdt., 14th Amdt., § 1; N. Y. Const.,
art. I; In re Winship, 397 U. S. 358, 363-364; La Fave &
Scott, Criminal Law, Hornbook Series, pp. 45-46; cf. Matter of
Richard S., 27 NY2d 802; see CPL 70.20). Unless an appellate
court can say that errors committed at trial, which affected
defendant's substantial rights, are harmless beyond a reasonable
doubt, defendant's right to that standard of proof can be severely
prejudiced, the extent of the prejudice depending upon the nature
of the error in the context of other proof and the circumstances
of the case.
Fourth, while the conceptual distinction
between constitutional and nonconstitutional errors is a real one,
the differentiation is of dubious validity as applied to the
appellate review process. As the history of the "right-privilege"
distinction in law indicates, the process of ascribing labels to
concepts from which serious consequences flow is one fraught with
peril and one uniquely susceptible to semantic gamesmanship. (For
a history of the right-privilege distinction see Van Alstyne, The
Demise of the Right- Privilege Distinction in Constitutional Law,
81 Harv. L. Rev. 1439.) Ultimately, the Supreme Court opted for a
course of action where the consequences to the particular party,
rather than the label attached, determined the scope of due
process safeguards (see Goldberg v. Kelly, 397 U. S. 254,
The pitfalls of utilizing the "constitutional"
and "nonconstitutional" dichotomy to determine the standard of
review are apparent. According to the rule enunciated by the
majority, the "harmless beyond a reasonable doubt" test is applied
where a constitutional error, other than one which denied the
right to a fair trial, is involved; however, in a
nonconstitutional error situation, the test of "significant
probability *** that the jury would have acquitted" (p. 242) but
for the error comes into play. Given a case, like this one, where
there is an accumulation of errors, or even in other situations
involving a single error, the effect of which is such as to
deprive a defendant of his or her constitutional right to a fair
trial (Irvin v. Dowd, 366 U. S. 717, 722; In re
Murchison, 349 U. S. 133, 136), even the most intense student
of the law must wonder which standard is to be applied. Of course,
if a single standard of harmless [*247] error beyond a reasonable
doubt is in force, such difficulties would not arise.
More fundamentally, a defendant's
constitutional right to a fair trial can be prejudiced equally by
nonconstitutional errors as by constitutional errors. This is why
it makes little sense to have a strict standard of review in one
area and a looser one in the other. In the instant matter, for
example, the constitutional error, which triggers the more
exacting standard of review, was not of great significance in the
context of the trial and was provoked to some extent by
defendant's action, as the majority recognizes. Far more serious,
in my opinion, were the errors the majority labels as
nonconstitutional. On this record, these and other errors cannot
be shown to be harmless beyond a reasonable doubt. In any event,
their effect was to deprive defendant of a fair trial and the
conviction must be reversed (see People v. Trybus, 219 N.
Y. 18, 21).
One of the major items of evidence received at
the trial was an admission made by defendant to Joseph Rorech in
which she admitted killing her daughter. The majority does not
deny that it was error to permit introduction of testimony that
Rorech, an important prosecution witness, had been given a sodium
pentothal (truth serum) test. It is difficult to imagine evidence
that could have had as grave an impact upon the jury in their
assessment of the credibility of the witness Rorech, to
defendant's obvious detriment. Under any view of the case, the
error affected defendant's "substantial rights" (CPL 470.05, subd.
1) to have the jury evaluate the believability of the witness
without the distraction of totally irrelevant considerations
injected by evidence erroneously received.
The prosecution's theory was that Colabella was
with defendant on the night her daughter was killed and helped her
dispose of the body. The admission into evidence of proof
regarding his failure to sign a waiver of immunity, when
questioned by the prosecutor during the pretrial investigation of
the case, was "most improper" and also affected defendant's
"substantial rights" since, as observed by the majority in the
Appellate Division, his refusal may well have been considered by
the jury as an indication of defendant's guilt (cf. People v.
Ashby, 8 NY2d 238, 242-243; United States v. Sing Kee,
250 F. 2d 236, 240, cert. den. 355 U. S. 954). The existence of
this [*248] issue, involving indirectly at least the Fifth
Amendment, has "constitutional overtones" (see Namet v. United
States, 373 U. S. 179, 186-187; Grunewald v. United States,
353 U. S. 391, 423-424) and points up again the difficulty in
assigning the labels employed by the majority.
Likewise, the seriousness of the error, in
putting before the jury Colabella's alleged admission to Sullivan
that he had a girl friend, Alice, "who was in a jam," and asking
Sullivan to help get rid of a body, is readily apparent. Colabella
denied not only knowing Sullivan but making the admission, and
Sullivan was not called as a witness nor was an explanation given
for the failure to call him. As pointed out in the decision under
review, this impropriety was aggravated when "(a) the prosecutor
strenuously opposed a subsequent defense request for a charge that
the jury could draw an unfavorable inference from the People's
failure to call Sullivan as a witness and (b) the court refused to
so charge" (41 A D 2d 933).
The trial was infected with further prejudicial
error in placing before the jury the subject of defendant's trip
to the Bahamas with a married man. The only conceivable relevancy
of this item was on the question of motive but testimony bearing
on this subject would be incompetent since there was not a logical
relation between it and the commission of the crime charged
"according to known rules and principles of human conduct" (People
v. Fitzgerald, 156 N. Y. 253, 258; Richardson, Evidence
[Prince — 10th ed.], § 171). As noted recently in People v.
Sandoval (34 NY2d 371, 376), "it must be recognized as
inevitable *** that evidence of prior criminal, vicious or immoral
conduct will always be detrimental to the defendant."
Further difficulty is encountered regarding the
introduction of evidence that, on the date of her alleged
confession, defendant became extremely distraught upon reading a
newspaper account of the arrests of 13 persons at the "Little
Appalachian" meeting in Queens and kept repeating a name. It
turned out later that Colabella was not named in the news story
nor was it his name which defendant repeated. This Mafia "angle",
introduced without relevance, was prejudicial and may have played
an important part in the trial. One major witness, Sophie
Earomirski, who allegedly saw defendant from a distance on the
night of the crime carrying a bundle and overheard [*249] an
incriminating conversation, justified her failure to come forward
promptly with her evidence on the grounds of fear. With the
prosecutor's injection of a spurious organized crime aspect to the
case, in itself dangerous, her explanation very likely gained a
credence it might otherwise have lacked.
The majority (p. 242) resolves the problem by
"excising both the evidence erroneously admitted (with respect to
Rorech's taking a truth test and as to Colabella's refusal to sign
a waiver of immunity) and the prosecutor's interrogation of
Colabella (as to the latter's damaging admission to Sullivan)" and
by finding overwhelming evidence of guilt. Performing such radical
surgery on the evidence fails to recognize sufficiently the danger
of improperly influencing or "tainting" the verdict by "harmless
errors". Jurors, hearing the events unfolding in an
emotion-charged atmosphere may very well impute greater importance
to evidence erroneously received than is apparent by speculation
of appellate courts, removed from the environment and reading cold
print. Their assessment of such evidence may color their entire
outlook of defendant's legal position.
More importantly, however, it is not for this
court to usurp the function of the jury and speculate whether,
without this evidence erroneously admitted, the jury nevertheless
would have acquitted (see dissent in People v. Catalanotte,
36 NY2d 192). What this court wrote in People v. Marendi
(213 N. Y. 600, 619) many years ago is just as true today: "where
prejudicial matter is erroneously received in evidence on a
disputed question of fact, its harmful character cannot be
determined solely by the mere weight of competent evidence unless
we are to resolve ourselves into a jury and, ignoring the finding
upon incompetent evidence, substitute one upon the evidence which
we may deem competent." That two juries have found guilt is beside
the point, just as is the fact that the both verdicts, up to this
point, have been set aside by different courts. This court,
following the first trial said (26 NY2d 319, 324): "Although, as
the People argue, the evidence is legally sufficient to sustain
the verdict of guilt, it was not so overwhelming that we can say,
as a matter of law, that the error [then under review] could not
have influenced the verdict (Harrington v. California, 395
U. S. 250; Chapman v. California, 386 U. S. 18)." Emotions
aside, [*250] the failure to accord an accused a fair hearing
violates even the minimal standards of due process regardless of
the heinousness of the crime charged (see Irvin v. Dowd,
366 U. S. 717, 722, supra.;).
The fact is that different items of prejudicial
matter were admitted and were before the jury for its
consideration. The character of the evidence was such that they
may well have affected the jury's evaluation of other items of
evidence, to defendant's detriment. Where these several major
elements of evidence against defendant were tainted by error, it
cannot be said that the case against defendant, although
persuasive, was overwhelming and that a jury composed of honest,
well-intentioned, and reasonable men and women could not have
I would affirm the order of the Appellate
Chief Judge Breitel and Judges Jasen, Gabrielli
and Wachtler concur with Judge Jones; Judge Cooke concurs in part
and dissents in part and votes to affirm in a separate opinion in
which Judge Fuchsberg concurs.
Order modified and case remitted to Appellate
Division, Second Department, for further proceedings in accordance
with the opinion herein and, as so modified, affirmed.
There may be other identifiable considerations in special
instances (e.g., People v. Savvides, 1 NY2d 554, supra.;)
in which our court held the conduct of the prosecutor to be so
improper as to call for a new trial quite irrespective either of
the quantum of evidence of guilt or of any evaluation of the
actual effect of the misconduct, at least in part for therapeutic