BRUNSWICK, Maine — A Brunswick man convicted of manslaughter 39 years after the death of his infant son will appeal to the Maine Supreme Judicial Court later this month, arguing that his confessions alone were not enough to convict him.
Burton “Ben” Hagar, now 64, of Farmington was arrested April 7, 2017, following his indictment on murder charges by a Cumberland County grand jury. He initially pleaded not guilty.
Hagar was charged in connection with the death of his 4-month-old son, Nathan Hagar, who was found unresponsive in the family’s Brunswick apartment and died at the former Parkview Hospital on May 9, 1979.
Nathan Hagar was originally believed to have died due to Sudden Infant Death Syndrome, or SIDS, but detectives reopened the case quietly in 1991, state police said at the time of the arrest.
During an April 10, 2018, hearing, Nathan Hagar’s mother, Venus Nappi, testified that she did not recall an interview with then-Brunswick police officer Mark Phillips the day of her son’s death during which she told him Nathan had been vomiting and had diarrhea that day. She said she did not recall a pediatrician telling her Nathan might have at least one digestive system condition, chalasia or pyloric stenosis.
She also testified that neither she nor Burton Hagar had ever put pillows in the child’s crib, and she said she did not recollect apologizing to a nurse for the baby’s death.
Phillips testified that day that he found a pillow in the crib with white or light-yellow mucus on it, but he acknowledged to Verne Paradie, Burton Hagar’s defense attorney, that since a 2014 interview about the case, he may have remembered additional details. He also told Paradie that he was not completely sure the baby was not breathing when he found him in the crib.
In July 2018, Justice Thomas D. Warren ruled that the infant’s death was a homicide after police said new evidence determined he was likely smothered with a pillow.
Hagar had repeatedly admitted to causing his son’s death — admissions that Paradie has characterized as unreliable — but the case could not move forward until a court determined a crime had been committed.
Under the terms of a conditional plea agreement, Hagar pleaded guilty to manslaughter in exchange for a 15-year sentence.
But the plea agreement was reached only on the condition that the attorneys who lost the case would appeal to the law court in order to obtain more clarity in such cases because “oftentimes, the only witness to the case is the deceased party,” Paradie said.
Under the state’s “corpus delecti” law, a confession alone is not enough evidence to convict someone, and prosecutors must provide other evidence of a crime.
Federal law requires the court to also weigh the credibility of the additional evidence and find that it is reliable.
“In this case, some 39 years later, the state finds the officer who first responded in 1979 tells them for the first time, ‘Oh yeah, there was a pillow with mucus on it in the crib,’ despite the fact that the mom and the officer were clear [previously] that there was no pillow in the crib,” Paradie said.
“My argument is that Mr. Hagar’s repeated inconsistent statements over the years about what happened and why it happened make his statements, first of all, completely unreliable,” Paradie said. “The second piece is the officer’s sudden recollection, over 30 years later, of this sort of mysterious pillow that wasn’t there, is not reliable and the court should have given that no weight and should have found that the state did not meet its burden in corpus delecti.”
“In this case, there is absolutely no substantial independent evidence to establish the trustworthiness of Mr. Hagar’s statements over the years and to establish his guilt beyond a reasonable doubt,” Paradie wrote in the appeal.
In addition, Paradie wrote that “the testimony of Officer Phillips is, as indicated earlier, suspect at best and is also not itself reliable enough to establish trustworthiness of the inconsistent statements of Mr. Hagar.”
Paradie said that if the court rules the state did not meet its burden in corpus delecti, the decision would be precedent-setting.
Assistant attorneys general Meg Elam and Lara Nomani declined to comment on the ongoing case.
The Maine Supreme Judicial Court is scheduled to hear the appeal May 14 in Augusta.