Stephen Fried

When Marie Noe was sentenced nearly two years ago, in the largest maternal infanticide case in recorded medical history, there was national outrage that the Kensington woman wouldn't be imprisoned for murdering her babies.

"A caricature of a lenient sentence," said the Washington Post op-ed page. "What Justice?" asked Time magazine. "House arrest and probation cannot be justified in a case where the perpetrator admits to killing eight . . . defenseless innocents," declared The Inquirer.

There were few defenders of the controversial plea agreement. As the author of the magazine story that led to the reopening of the case, I was one of them. And it was only because the district attorney promised, and the judge ordered, a "special condition" of her 20 years of probation, the first five under house arrest: 70-year-old Noe would be scientifically studied with the money that otherwise would have been spent trying and incarcerating her.

Nationally renowned experts anticipated an amazing opportunity to broaden science's comprehension of the incomprehensible - since Noe essentially agreed to donate her brain to science while she was still living.

So far, however, it has been an incomplete sentence. Most of the experts originally asked to be part of a psychiatric "dream team" haven't heard from the District Attorney's Office or the probation department in nearly two years. Some are now fearful that the research opportunity is being squandered. And Noe has had her probation quietly revoked, leaving the future of her sentence unclear.

At a hearing on Tuesday, the judge who struck this unusual bargain will finally get the update on her psychiatric evaluation, an update he had expected to receive by Jan. 4. Then he has some big decisions to make.

In the spring of 1998, the Special Investigations Unit of the Philadelphia Police Homicide Department, prompted by my story in Philadelphia magazine, questioned Noe about the deaths of her 10 babies between 1949 and 1968. She confessed and, several months later, was indicted on eight counts of murder (two of the babies died of natural causes).

Nearly a year passed before she admitted in open court to killing her children and offered as explanation that she was "ungodly sick." Those closest to the investigation were satisfied with a sentence of probation and a groundbreaking psychiatric analysis (except her devoted husband, Arthur, who continued to maintain her innocence).

During the summer of 1999, doctors from around the country were approached about being part of the dream team that would study Noe. But that team has yet to be impaneled or consulted. And, according to one person close to the case, Noe is seen once a month at most, and only by one of two local mental-health professionals - a forensic psychiatrist and a psychologist who do many of the Common Pleas Court's evaluations.

Instead of adding insight, the sentence just keeps adding insult to injury. In November, Common Pleas Court Judge William Mazzola quietly revoked Marie Noe's probation - for reasons that he still hasn't made public, but that may have involved a violation of house arrest when Noe made an unscheduled trip to Denny's. Since then, the court has considered her to be, technically, unsentenced.

While high-profile news conferences were held when Noe was arrested, and again when she pleaded guilty, the public hasn't been made aware of these recent developments. The Noe sentence became a loud issue in the recent Democratic primary for the office of district attorney, with challenger Alex Talmadge Jr. making the claim (unfounded, I think) that if Marie Noe were black, she would be in prison.

Though District Attorney Lynne M. Abraham was asked about the plea agreement during the campaign, she never mentioned that Noe had been declared VOP, in violation of parole, or that hearings to get the process back on track had been postponed twice. The most recent hearing was supposed to take place May 5, 10 days before the primary. It is now scheduled for Tuesday at the Criminal Justice Center.

Among those anxiously awaiting the outcome is Dr. Marc Feldman, the nation's leading expert on Munchausen syndrome by proxy, one of the possible psychiatric explanations for why Noe smothered her babies. Feldman has been cooling his heels for almost two years, ever since receiving a call at his office at the Center for Psychiatric Medicine, at the University of Alabama, Birmingham, from Dr. John O'Brien 2d, the psychiatrist often used by the Philadelphia probation department.

O'Brien asked what Feldman would charge to join the unprecedented psychiatric investigation. Feldman immediately faxed back a costs-only proposal. He knew the chance to analyze Noe would be a rare opportunity.

Her case was extremely well-documented in the '50s and '60s, when the Noes were considered the most bereaved parents in America, their babies believed to be victims of "crib death." And she still has the faculties to be quizzed about the details of her life - or, at least she did when I interviewed her in 1998.
To begin preparing, Feldman even e-mailed his pal Ann Rule, the ex-police officer and best-selling true-crime writer known for her interviews with Ted Bundy, seeking advice on how to approach Noe. The key, Feldman believed, was that experts in various fields should meet before anyone had a therapeutic session with Noe - to make sure there was no bias in favor of one psychiatric, neurological, or sociological theory over another.

Yet Feldman hasn't heard from anyone involved with the Noe sentence since August 1999. The same is true for at least two other physicians originally contacted: Richard Kluft, an expert on dissociative disorders (another possible etiology), and Stephen Ludwig, a leading authority on child abuse, who is based at Children's Hospital of Philadelphia.

The Ludwig exclusion is particularly surprising, since he was the first outside expert brought in by the District Attorney's Office to reanalyze the incriminating evidence against Marie Noe.
Because of Ludwig's academic and clinical standing at Children's Hospital and Penn, and his longtime advocacy role in the field of child-abuse awareness and treatment, he was a logical choice to help address the problems inherent in a court-ordered psychiatric study that would eventually be released to the scientific community and the public.

"Strange system of justice we have," Ludwig said when asked about the case.

What has happened to the "special condition" in Marie Noe's plea agreement? Has she been cooperative? Has the initial evaluation and testing simply taken a year longer than it should have? Are the right people in charge of her evaluation?

Perhaps the hearing Tuesday will bring some clarity. But, from the very beginning, neither Abraham nor the Court of Common Pleas had a plan in place to actually pay the underlying costs of an unconventional plea bargain.

If Noe had been sent to prison the day of her sentencing, the city would have routinely paid about $74 a day to keep her locked up, a sum of more than $135,000 over the five years of her house arrest.
It's not easy to get that same amount allocated for something more ambitious than punitive warehousing.

Behind the scenes, there has been bickering over who is responsible for coming up with the money for the sentence: the probation department, which is charged with carrying out all sentences, or those who devised and imposed the sentence.

Assistant District Attorney Charles Gallagher, who hammered out the deal with Noe attorney David Rudenstein, did the initial work in gathering the names for the dream team. (I should disclose that I was among several people privately asked to nominate experts.)

But only a judge has the direct ability to order the probation department. So far, by revoking probation, Judge Mazzola has shown some concern over whether his brave sentence is being carried out. But he has yet to take the forceful action necessary to make sure the probation department devotes unprecedented resources and ambition to this unprecedented case.

In the meantime, the only mental-health professionals who have had access to Marie Noe for the 20 crucial months since her sentencing are O'Brien and psychologist Steven Samuel.
Both are well-liked and talented, but neither is a recognized expert in child abuse, infanticide, or Munchausen, and a monthly appointment hardly qualifies as "intensive mental-health treatment," as ordered by the court.

They were initially hired only to do the evaluation and competency testing of Noe. As far as Feldman is concerned, even that should have been done in consultation with a variety of experts to keep it "open-ended and theory-free."
(O'Brien and Noe attorney Rudenstein did not respond to requests for comment; Judge Mazzola and Assistant District Attorney Gallagher declined to comment, because the sentence is still before the court.)

It may be that in a typical case, the probation department spends up to two years of a five-year house arrest completing mental-health evaluations. But this was never a typical case. Noe is elderly and infirm, and her conviction came 30 years after her last crime.

The failure to bring in a variety of experts might already have had negative effects. Noe, in sessions with O'Brien or Samuel, "may have already become committed to a particular understanding about her behavior, closing off her thinking to other possibilities," Feldman laments. After all this time, "she's also no longer naive therapeutically. She's no longer virgin terrain in terms of psychiatric assessment. To the extent that she's become wise to the process of psychiatric examination, she may be less forthcoming."
But he remains hopeful that the "special condition" of the sentence can still be carried out.

In October, there will be a symposium on the Noe case at St. Christopher's Hospital for Children. I can only hope that, by then, there will be more encouraging news to report.