June 24, 2008
IN THE MATTER OF MURRAY COHEN, DECEASED
On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, C-176-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Payne and Sapp-Peterson.
Steven Cohen Esdale, the son of Murray Cohen, appeals from the order of Judge Chambers denying with prejudice his application for exhumation of his father's body to permit an autopsy in order to determine whether Cohen was murdered. On appeal, Esdale makes the following argument:
THE APPELLANT SHOULD BE ALLOWED TO EXHUME THE BODY OF HIS FATHER TO OBTAIN FORENSIC EVIDENCE WHICH WOULD PROVE THAT HE DID NOT DIE OF NATURAL CAUSES, IN FACT, WAS MURDERED AT THE HANDS OF THE RESPONDENT, MARIA AMURRIO COHEN. BY THE LAWS OF THE STATE OF FLORIDA AND NEW JERSEY, A PERSON WHO TAKES THE LIFE OF ANOTHER SHOULD NOT BE ALLOWED TO INHERIT OR FINANCIALLY BENEFIT FROM THIS TYPE ACTION.
Cohen died on January 13, 2003 at the age of seventy-one while residing at his winter home in Sarasota, Florida with his wife, Maria Amurrio Cohen. According to Maria, the two had retired for a nap at approximately 4:30 p.m. Shortly before 6:00 p.m. Maria was awakened by a telephone call, which she answered in the kitchen. After determining that the caller wished to speak with Cohen, she returned to the bedroom to wake him, but was unable to do so. Maria thereupon called 911, which dispatched medical personnel, whose resuscitation efforts were to no avail. Cohen was pronounced dead at 6:05 p.m.
Because Cohen did not have a doctor in Florida, the Florida District Twelve Medical Examiner took jurisdiction over the case. Upon conducting an external examination of the body, which bore no evidence of foul play, and learning from Cohen's New Jersey primary care physician, Dr. McHugh, that decedent had a medical history of cardiomyopathy, hypertension and pulmonary disease, and that he was fortunate to have survived as long as he had, the medical examiner determined "to sign-out the case with external examination of the body only." Associate Medical Examiner Anderson signed the death certificate on January 15, 2003, listing the cause of death as "probable acute myocardial infarction due to atherosclerotic cardiovascular disease."
Cohen's body was thereupon transferred to a local funeral home, where he was embalmed in preparation for shipment to New Jersey for burial. However, because of suspicions as to the cause of death raised by Esdale, hair and vitreous fluid samples were taken from the embalmed body before it was sent to New Jersey. Subsequent toxicologic analysis of the hair was negative for heavy metals; analysis of the vitreous fluid revealed only methanol, an artifact of embalming fluid.
Esdale's concerns regarding the cause of his father's death continued, and in the ensuing months, he contacted the Sarasota County Sheriff's Office and the Office of the Medical Examiner on multiple occasions seeking further investigation. In support of his claim that foul play may have occurred, Esdale relied, in part, upon disputed analyses of copies of the recording of Maria's 911 call that suggested that Cohen was alive and conscious at the time of that call and that Maria had caused his death*fn1; a statement by Stephen Beninati, the late-afternoon caller, that he thought he had interrupted a domestic dispute; inconsistencies in Maria's account of what occurred; a neighbor's statement that she had seen Cohen in the yard during the time he was allegedly napping; and the fact that Maria and Cohen, a man twenty years older than she, had been married only three weeks at the time of Cohen's death. Of particular significance to Esdale was the discovery in Cohen's medicine chest of an empty bottle of Corazol, a non-FDA-approved nervous system and respiratory stimulant and convulsant manufactured only in Bulgaria and in Bolivia, Maria's home country. Esdale hypothesized that administration of the Corazol and other drugs by Maria, who had medical training, was the true cause of Cohen's demise and that an autopsy would prove that fact. However, as the result of the embalming process, it is unclear whether an autopsy, conducted now, would disclose the presence of Corazol or any other drug.
Following an extended investigation by the Sheriff's Office, referral of the 911 recording to the F.B.I. for analysis, and a review of the matter by the Florida Department of Law Enforcement, at the request of Florida's governor, the authorities in Florida closed the file, determining that Cohen had died of natural causes. Despite Esdale's continued efforts, they have adamantly refused to reopen the matter. A letter to Maria from the General Counsel to the Sarasota County Sheriff's Office, dated September 6, 2006, confirms that the Sheriff was not "seeking to exhume the body of Murray Cohen."
In a will executed on November 15, 2001, Cohen bequeathed a life estate in the Sarasota home to Maria and, it appears, the remainder of his estate to Esdale's son, Ryan.*fn2 Following Cohen's death, Esdale challenged the admission of that will to probate, but after a two-day trial, occurring on September 20 and 21, 2004, his challenge was denied. In an order authorizing payment of attorneys' fees and costs, dated July 28, 2005, the Florida probate judge recited: "The Court and Respondent, Steven J. Esdale, have acknowledged that the challenge to the admission of the subject Will to probate was frivolous and wholly lacking of any factual or legal basis." Accordingly, attorneys' fees in the amount of $102,293.75 and costs in the amount of $5,825.98 were approved, and the Personal Representative of the estate was "authorized and directed to pay $108,119.73 from the assets of the Estate, with payment of $102,596.48 being paid from Ryan Esdale's beneficial share of the Estate until his share is completely exhausted and the balance of $5,523.25 shall be paid from the other assets of the Estate." Thereafter, Esdale filed a Petition for Forfeiture*fn3 seeking to have Maria Cohen disqualified as a beneficiary under the will, which appears also to have been denied. We have been provided nothing that would suggest that probate proceedings remain open in any form.*fn4
In an action instituted in the Circuit Court in and for Sarasota County in 2004, Esdale sought exhumation of his father's body to determine through autopsy whether Corazol was the cause of his death. That relief was denied in an order filed on March 10, 2004. Thereafter, Esdale sought exhumation for the same purpose in actions instituted in the Chancery Division of the Superior Court of New Jersey in 2004 and 2005. Both applications were denied without prejudice by Judge Francis in orders filed on November 19, 2004 and August 9, 2005.
Esdale's third New Jersey action seeking exhumation of Cohen's body was denied with prejudice by Judge Chambers in an order dated October 20, 2006. In a written opinion accompanying that order, Judge Chambers recognized the State's strong policy against exhumation and the inapplicability of any statutes authorizing that remedy.*fn5
Additionally, the judge rejected Esdale's argument that his application was being made for a public purpose, finding that Esdale had asserted only a private claim, and stating:
Here the applicant alleges that he is seeking the exhumation and autopsy for public reasons because, he contends, it will further his theory that a crime has taken place. However, he is not a public official charged with the investigation of crimes for the public good. Rather he is a private individual seeking to establish foul play and, as his complaint in federal court [for deprivation of civil rights] indicates, he had a personal interest in doing so, namely, in order to obtain an inheritance for his son and himself. This is a private matter.
The judge then noted that exhumation to further private rights is not favored under the law, and can occur only when the applicant demonstrates "good cause and urgent necessity" for the information sought through that process and, by clear and convincing evidence, shows that in all "reasonable probability" the exhumation and autopsy will reveal the sought-after information. See Petition of Sheffield Farms Co., 22 N.J. 548, 556 (1956); Perth Amboy Gas Light Co. v. Kilek, 102 N.J. Eq. 588, 590 (E. & A. 1928); Camilli v. Immaculate Conception Cemetery, 244 N.J. Super. 709, 713 (Ch. Div. 1990). To determine whether there was any urgent necessity for the exhumation, the judge looked to whether litigation requiring evidence of the cause of Cohen's death was pending, and she found none.
In this connection, Esdale asserts in his brief on appeal that:
Judge Chambers claimed in her written opinion there was no pending litigation which would require an exhumation of the body. Judge Chambers was given copies of motions filed in the Court of Sarasota which clearly reflected that the Appellant was invoking the slayer statute as a defense in many motions and that they were pending in the probate case. SEE EXHIBIT 28.
The statute to which Esdale refers, Fla. Stat. § 732.802, provides that a killer is not entitled to receive property or other benefits as the result of her victim's death and permits a determination of whether the killing was unlawful and intentional to be made by a preponderance of the evidence. However, we have been unable to locate "Exhibit 28" in Esdale's unindexed and unpaginated multi-volume appendix or any documents indicating Esdale's reliance on the slayer statute. Moreover, we note that the probate matter appears to have been concluded, and we have been informed that Esdale has been enjoined from instituting further proceedings in that court. We thus conclude that Esdale's objection to the judge's determination is unfounded.
Judge Chambers stated additionally:
In correspondence to Esdale dated January 12, 2006, the Florida Department of Law Enforcement has stated that even if Corazol were present in the body, the evidence would still be insufficient to file criminal charges, presumably because Cohen may have come into possession of it under benign circumstances. Thus, Esdale cannot make "a clear and convincing showing" that in all "reasonable probability" the autopsy will prove whether his father was murdered. Further, he cannot show any "good cause and urgent necessity" for the information, since it is not urgently necessary in any pending litigation and law enforcement authorities have deemed an exhumation and autopsy unnecessary.
Accordingly, Judge Chambers denied with prejudice Esdale's application to exhume his father's body for the purpose of conducting an autopsy on it.
On appeal, Esdale argues in his initial brief that Judge Chambers' decision was politically motivated, and that as a result she declined to conduct a testamentary hearing on Esdale's claims or to hear him express his position individually, rather than through his attorney, and she disregarded the evidence presented by him, particularly, the affidavit of former Sarasota sheriff's homicide detective, Garry Ferguson, who concluded that Cohen's death was a homicide, and the reports of Esdale's audio forensic experts. According to Esdale:
The Appellant has fought as hard as humanly possible to open the ears of law enforcement in Florida. The Appellant is up against people in powerful positions who are misusing their power. It is clear that the only way that Law Enforcement will take another look at the evidence and conduct a thorough investigation is if they are forced to do so. An exhumation and examination of Murray Cohen's body would determine the true cause of death. An exhumation and examination of Murray Cohen's body would result in a great miscarriage of justice being reversed.
Contrary to court practice, see, e.g., Randolph Town Ctr. v. County of Morris, 374 N.J. Super. 448, 452 n.1 (App. Div. 2005), aff'd in part; vacated in part on other grounds, 186 N.J. 78 (2006), in his reply brief, Esdale argues additionally that the judge's failure to hold a hearing constituted a denial of due process; that Maria Cohen is perpetrating a fraud on the court by asserting that she was married to Murray Cohen, when the "marriage" did not conform to Bolivian law; and because she was not Cohen's legal spouse, Maria lacks standing to oppose Esdale's application in the present matter.
We reject as utterly unfounded Esdale's assertion that Judge Chambers' decision was politically motivated. Further, we decline to address at length the issues of the validity of Maria's wedding to Murray Cohen or the consequences of its alleged invalidity, finding such arguments irrelevant to the present proceeding, and more appropriately raised in the Florida probate matter. R. 2:11-3(e)(1)(E). We only observe in this connection that Maria has a sufficient stake in the outcome of this matter to confer standing upon her under the liberal standing principles articulated by the Court in cases such as In re Baby T., 160 N.J. 332, 340 (1999).
After a review of the record, the arguments of Esdale and counsel for Maria Cohen, and applicable legal precedent, we affirm the decision of Judge Chambers substantially for the reasons expressed by her in her written opinion. In doing so, we reject Esdale's argument that a testamentary hearing should have been held in the matter, determining that none of the factual disputes that Esdale has cited require resolution in the present legal context. Simply stated, Esdale has failed to meet the heavy burden of proof established by New Jersey law to overcome legal safeguards protecting the sanctity of the grave. Probate proceedings regarding Esdale's father's will are concluded. Moreover, in the face of evidence produced by Esdale, Florida authorities have manifested no interest in reopening their investigation into the cause of Cohen's death, and they have stated that they will not do so, even if Corazol were somehow to be found present in Cohen's body. Judge Chambers was therefore justified in concluding that disinterment in these circumstances would be a futile and unnecessary act.
As the Court stated in Sheffield Farms,
In the search for the truth we must not disregard the problems of religion, the wishes of the decedent, the sensitivities of loved ones and friends, or even the elements of public health and welfare . . . . The law, then, will not reach into the grave in search of "the facts" except in the rarest of cases, and not even then unless it is clearly necessary and there is a reasonable probability that such a violation of the sepulchre will establish what is sought.
[22 N.J. at 556.]
Because this case does not fit within that "rare" category, Judge Chambers' order is affirmed.