The following news item is printed in its entirety as it appeared in the New Haven Register,
February 21, 2008:

Aunt avoids jail in baby poisoning
Harsh words exchanged as family members face off in court

February 21, 2008 - New Haven Register
By Amanda Pinto, Register Staff

The Killingworth woman accused of poisoning her sister’s infant son in 2006 was granted a special form of probation by a Superior Court judge in New Haven Wednesday, despite objections from several of her family members.

Under the program, Nicole Burger, 41, would see charges of reckless endangerment and risk of injury to a child wiped from her record if she is not arrested for two years, undergoes a psychological evaluation and completes 75 hours of community service, Judge Earl Richards ruled.

The crimes, to which Burger pleaded innocent, carried a penalty of up to 10 years in prison.

The central argument — Richards ruled — was whether the poisoning was deliberate or a “horrible accident.”

Although state toxicologist Dr. Robert Powers wrote that the injuries may have been the result of “a direct pouring of the chemical substance into the infant’s mouth,” Burger’s attorney, Tara Knight, presented a report from a well-known Pennsylvania-based toxicologist who said the boy’s only symptoms were a reddening on the tip of his tongue, a smell of pesticide and an excess of saliva.

Dr. Robert Middleberg wrote that suckling on Burger’s shirt, which was coated with chemicals that Burger said spilled while she was gardening, “cannot be discounted” as the probable mechanism of the baby’s exposure.

The boy has since recovered.

Burger deferred all comment after the hearing to her lawyer.

Knight described Burger as a “soccer mom” who was wrongfully prosecuted after her then-10-day-old nephew, whom she was holding, began struggling to breathe, throwing up and exuding a chemical smell in September 2006.

Toxicology tests found the baby came in contact with the same kind of pesticide Burger bought the morning of the incident.

The arrest warrant indicates that Burger never handed over the pesticide that was determined to have caused the symptoms. It also said she admitted to suffering from depression and obsessive compulsive disorder. The warrant further implied she may have harmed the baby because she was jealous of the attention her mother lavished on her sister’s newborn son. Previously, Burger was the only family member to have a boy.

Knight said Burger does not suffer from any mental illness.

“This case should never have furnished any business for the criminal courts,” Knight said. “It was a pure, unadulterated accident, and the whole motive that she was jealous that her sister had a baby was preposterous.”

Burger’s two sisters, brother-in-law and mother painted a different picture during Wednesday’s 90-minute court hearing.

The New Haven Register is withholding the names of the baby’s parents in order to protect the boy’s identity.

The baby’s mother and father, who live in Madison, both said they believe Burger intentionally poisoned their son.

The boy’s father said he only detected the chemical smell when Burger, who had been holding the baby outside at his home, came back in the house.

“The chemical odor on the outfit was so strong that it was obvious to me that this was no accident. … I believe she had a mental breakdown, took my son outside and intentionally introduced a small quantity of pesticide into his mouth,” he said.

The boy’s parents, as well as Burger’s mother, Nicky Ornato, and her other sister, Jaclyn Pascale, described Burger as “mentally unstable,” a woman who has shown no remorse and began a downward spiral after the incident, alienating family and engaging in self-destructive behavior.

She is a “liar that believes her own lies,” Ornato said.

“She is not the same person,” Ornato told the court. “She is evil, mean, vindictive and she needs help.”

In the increasingly contentious proceedings, during which Burger’s family members and the friends who came to support her exchanged pointed glares, three women spoke on Burger’s behalf — a friend, Mary Carta, called the family “derisive, mean-spirited, over-reactors” who grossly mischaracterized Burger.

Liz Dougherty, a friend and neighbor, wept as she told the court about how Burger helped her family when Dougherty’s son broke his arm.

“Nicole cares not only for her own children, but for any child she knows,” she said.

Knight suggested the family was interested in persecuting Burger because they had taken her husband’s side in ongoing divorce proceedings.

David J. Strollo, supervisory assistant’s state’s attorney and the prosecutor in the case, said the state had a “strong circumstantial case” against Burger, but Richards ruled the evidence supported accelerated rehabilitation.

Burger’s family members said they were disappointed by the decision, and felt the judge relied too heavily on the lack of substantial injuries to their son. The judge should have considered further the inconsistencies in Burger’s statements to police, and the odor of chemicals they smelled after she was outside with the boy, they said.

Now, family members hope the court-mandated psychological evaluation yields results that lead to treatment, they said.

They have never advocated jail time, just psychological treatment for Burger, her sister said.