Alice Crimmins Case – 1965

The murder of two children results in the mother’s arrest.

In 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.

Books: Great American Trials, Reference KF 220 .G74 1994 page 559

Bloodletters and Badmen, Reference HV 6785 .N37 1995 page 169

Victims: Eddie Crimmins, Jr. and Alice Marie "Missy" Crimmins

Suspect: Alice Crimmins

Murder Date: July 14, 1965

Trial Dates: May 9-27, 1968 and March 15 – April 23, 1971

The Medea of Kew Gardens Hills

On the 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.

Alice's 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.

Jerry 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.

The first 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.'

Piering took 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.

After dinner, 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.

Upon 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.

After talking 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.

Alice and 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 house."

Combining a 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.

Eddie liked 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.

Eddie's 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.

In addition 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 reports.

Following the 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.

After the 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.

Joe Rorech 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 interest.

At first 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.

According to 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.

The 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 Sophie Earomirski.

Sophie's 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."

Shortly after 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 dead body.

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.

The 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 claimed.

Lombardino 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 former mistress.

The defense, 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.

After 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 were surprised.

The defense 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.

The principal 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 confession.

The decision 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 to conclude.

The trial 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 years.

Alice's 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.

The stakes 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.

The 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.

In his 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."

The jury 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.

The first 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.

The Appellate 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.

On December 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."

In January 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!"

On September 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.

The Crimmins 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."

Alice 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.

The 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."

Could Alice 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.

There would 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.

If the 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.

The Alice Crimmins Case

By Denise Noe

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 sensation. 

This odd 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.

The incident 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 affairs.

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 my Missy!  Don’t you ever touch my Missy!”

After they 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.

That 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 their mother.

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. 

That 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.

When Piering 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 bitch.”

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.

Crimmins swooned and Piering caught her.  “It’s Missy,” she mumbled.

She 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, expressionless tone.

At her home, she stepped into a swarm of photographers’ lights popping off in her face – and suddenly started sobbing.

That settled 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.

Their very 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!”

Her 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. 

Perhaps this 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. 

It is 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 flesh.

Husband 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. 

Even more 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.

But 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.

When Piering 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.

A photograph 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.

As Piering 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.

However, when 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 innocently mistaken. 

There were 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 case.

Then there 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.

Alice claimed that, on the fatal night, the family had eaten at 7:30PM and she had checked on the children at midnight. 

Was 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. 

But there were no such conversations. 

However, 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.

So 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.

Dear Mr. Hentel:

Have been 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 Kissena boulevard.

Please forgive me for not signing my name, but I am afraid to.

Wishing you the best of luck.

A reader

P.S.—About one hour later I thought I saw just the man getting into a late model white car.

The police 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.

However, they 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.

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.

However, the police were elated by Earomirski’s evidence and viewed it as just what they needed to secure an indictment.

Drawing on 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. 

The tall, 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.

The Crimmins 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 directly incriminating

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.

The press, 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.

Crimmins’s 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.”

The courtroom 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.

The physician 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—“

“No!” The doctor’s recitation was broken by a shout from Alice Crimmins who began to weep.

Judge Farrell 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. . . . “

Alice 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.

A different 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.”

At this 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!”

Sophie 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.”

Again Alice jumped to her feet screaming.  “You liar!  You liar!” the defendant thundered.  “You liar!  You liar!  You liar!  You liar!”

Judge Farrell pounded his gavel and demanded Alice Crimmins get a grip on herself.

One 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.

Baron took 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 semi-faint.

She repeated 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.

Crimmins was 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 sleeping.

LOMBARDINO: Where specifically in your apartment was Andrade?

CRIMMINS: In my bedroom.

LOMBARDINO: Where were you, Mrs. Crimmins?

CRIMMINS: In the bedroom with him, sir.

LOMBARDINO: I 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.]

CRIMMINS: Yes, he did.

LOMBARDINO: What did he do when he got there?

CRIMMINS: We weren’t doing anything at the moment.

LOMBARDINO:  You weren’t doing anything?  How was Carl Andrade dressed?

CRIMMINS: He was in a state of undress.

LOMBARDINO: Will you tell the men of this jury panel what you mean by a state of undress?

CRIMMINS: Just what I said, sir.  A state of undress.

LOMBARDINO: What was your condition of attire?

CRIMMINS: I was also in a state of undress.

LOMBARDINO: Did your husband see Carl Andrade?

CRIMMINS: Yes, he did.

LOMBARDINO: What did he do when he saw Carl Andrade.

CRIMMINS:  They had a scuffle and Eddie chased him.

LOMBARDINO: Was Andrade in a state of undress when Eddie chased him?

CRIMMINS: Yes, he was.

LOMBARDINO: How did he get his clothing, Mrs. Crimmins?

CRIMMINS: I got dressed and brought them out to him.

LOMBARDINO: Where was he when you brought him his clothes?

CRIMMINS: In his car.

In another particularly damaging exchange, Lombardino was able to juxtapose the pitiful deaths of her children with the apparently callous hijinks of their promiscuous mother.

LOMBARDINO: Does Joe Rorech have a swimming pool?

CRIMMINS: He does.

LOMBARDINO: Did you swim in it?

CRIMMINS: Yes, I did.

LOMBARDINO: What were you wearing when you swam in Joe Rorech’s pool?

CRIMMINS: One time, a bathing suit; one time, no bathing suit.

LOMBARDINO: 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 of anything.”

Conviction, Collapse and a Fresh Start

In its 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 manner.

Her attorneys 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.

Crimmins got 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 conviction out. 

The second 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 girl’s murder).

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.

While prosecutor Thomas Demakos was questioning prospective jurors, he commented, “She is presumed to be innocent . . . but she is not innocent!”

Alice cried out, “I am too innocent!  You know I’m innocent!”

The bespectacled and balding Judge George J. Balbach told the prosecutor to avoid making such assertions when he was interviewing potential jurors.

Later, the 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!”

Edmund 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.”

Once again, 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.”

Lyon was 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.

Anthony Grace 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.

Detective 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.”

This provoked another Alice outburst: “But he did now!”

Once again, 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.

Alice Crimmins stood and shouted, “It is not!  You liar!  In God’s name, tell the truth!”

The judge 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!”

Again the judge called for Crimmins to get a grip on herself. 

DA Demakos asked Earomirski, “Was it Mrs. Crimmins you saw out there that night?”

“I swear to God,” Earomirski replied.

“You swear!” Crimmins cried.  “It wasn’t me!  I didn’t do it!  You don’t know what God is!”

The 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 window.

“There’s 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 fainted.”

“A mouse?” Lyon asked. 

“Yes, a mouse,” Earomirski replied nonplussed.  “You know, a little itty –bitty thing with a tail on it: a mouse.”

Both 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.

She denied that the time she had overdosed on tranquilizers was a suicide attempt.

Lyon pointed out that her stomach had been pumped.

“That’s right,” a smiling Earomirski readily agreed.  “And then I went with my husband across the street to a diner and had a hamburger.”

Lyon 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.

“Were they speaking loud, were they yelling,” Lyon rather understandably wondered.

“No, in normal tones,” Earomirski replied.

“And from two hundred feet away you heard them talking in normal tones?” Lyon asked in amazement.

“That’s not unusual,” Earomirski informed him.  “My girlfriend, I hear from the window when she asks me what I want from the store.”

Lyon asked where the girlfriend lived and Earomirski went to the diagram and pointed to an apartment some two hundred feet away from hers.

“The 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?”

“Of 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.’”

A weeping Crimmins shouted, “You miserable, lying worm!”

Then Rorech 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.’”

A surprise 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.

During a 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.”

The 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.

That witness 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. 

Weinstein’s wife appeared in the courtroom and she bore more than a passing resemblance to Alice Crimmins.

Had 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 notorious liar.

Vincent 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 old-fashioned jury.

Herb Lyon 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.

Lyon’s 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. Crimmins.”

Earomirski “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 mouse.”

Finally, Herb 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.”

Thomas 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 – “

“Because I 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!

Her mother, Alice Burke, wailed, “Sweet Jesus, no!  Not again!”

John Burke, her brother, said, “She didn’t kill her children.  She didn’t kill them.”

Her ex-husband Edmund Crimmins cried, “This isn’t justice,” as tears streamed down his cheeks.

A male 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.

Herb Lyon appeared stunned in defeat, saying, “I guess I convinced everyone but the jury.”

The second trial of Alice Crimmins ended and Crimmins went to prison for what was assumed would be the rest of her life.

She had 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.

The DA 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 Anthony Grace.

The 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. 

First, there 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. 

Questioned 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.

Detective 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.

Joe Rorech 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.

Moreover, 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?

Was Alice 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 Crimmins, Child-killer."

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.

CrimeLibrary.com

Court of Appeals of New York

36 NY2d 230

The People of the State of New York, Appellant,
v
Alice Crimmins, Respondent.

Argued January 8, 1975
Decided February 25, 1975

OPINION OF THE COURT

Jones, J.

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 be overturned.

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.^[1] 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. 18, supra.;).

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 defendant.

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 daughter.

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, par. [b]).

Cooke, J.
(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 this case.

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 answer.

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 of convictions.

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, 262-263).

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 acquitted her.

I would affirm the order of the Appellate Division.

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.