DEATH PENALTY MAY BE SOUGHT – KIDS DRUGGED? DAD PLEADS NOT GUILTY IN KILLINGS — (The New Jersey Record)

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The New Jersey Record 

July 1, 1994

Author: By MARY JO LAYTON, Staff Writer; The Record

Bergen County authorities say they are investigating whether Avi Kostner’s two children were drugged before they were suffocated, a factor that could bolster a death-penalty case.

Kostner pleaded not guilty to the killings Thursday.

“It’s possible [the children were drugged]. There was medication found in the home,” Prosecutor John J. Fahy said.

If toxicology reports expected within a few weeks indicate the children were drugged, that evidence and other factors would be crucial in building a death-penalty case against Kostner, Fahy said.

Fahy declined to elaborate.  However, a law enforcement source said investigators discovered a prescription for a depressant drug they suspect Kostner may have used to render his 12-year-old daughter, Geri Beth, and 10-year-old son, Ryan, unconscious before killing them.

Authorities suspect the children may have been drugged before they died, because their bodies showed no signs of injury or a struggle.

According to court records, Kostner, 50, of Teaneck, suffers from depression and has taken medication for the condition.

“The decision [to seek the death penalty] will hinge on how much premeditation was involved,” Fahy said. The prosecutor said he expects to make a decision within a month, after he receives the toxicology reports.

Kostner could not use his condition in an insanity plea, Fahy said, because “depression is not a mental illness that would cause someone not to be responsible for his actions. It’s not a legal defense.”

If the state seeks the death penalty, Fahy said, he would consult with Kostner’s attorney to determine whether a serious mental illness existed.

In court Thursday, Kostner was shackled and handcuffed, but appeared composed. He lowered his head frequently as he responded to routine questions by Superior Court Judge Sybil R. Moses.

His attorney, Carl Herman of Livingston, entered not guilty pleas to both counts of murder. Kostner is being held on $1 million bail.

Kostner, who had been remanded to the Bergen Pines County Hospital, where he had been under psychiatric observation, was transferred Thursday afternoon to the Bergen County Jail, where he remains on a suicide watch, Fahy said.

Authorities say Kostner has told them he suffocated his children nine hours apart with his bare hands, but authorities are still piecing together the series of events that led to the children’s deaths on Sunday.

Their bodies were discovered in the back of a truck parked behind Teaneck Town Hall, with Kostner slumped over the steering wheel.

Even when defendants confess to crimes for which they are charged, they are permitted to plead not guilty in court and routinely do so upon consultation with their attorneys.

Investigators suspect the killings may have been committed in response to a decision by Kostner’s ex-wife, Lynn Mison of Wayne, to move the children to Florida. The move was to have occurred today. Fahy said that based on court-designated visitation rights, Kostner would have had the children for a month, beginning in mid-July.

The couple had been engaged in a bitter custody fight, which was fueled by religious differences between Kostner and Mison. She had converted to Judiasm when the couple married, but renounced the faith after the divorce and had been raising the children as Christians.

In weighing evidence to determine whether the killings were premeditated, Fahy noted that the children died about nine hours apart and that investigators have collected seven mailings containing a family portrait of Kostner and his children, four of which were postmarked with Monday’s date and bear Kostner’s signature. One contained a letter, but Fahy refused to divulge its contents.

The photos were received by The Record and other publications in North Jersey.

A handwriting analyst hired by The Record determined that the writing on the envelope was Kostner’s.

On at least three occasions between 1986 and 1988, Kostner, frustrated with the Family Court’s treatment of his case, called for dramatic measures to improve the judicial system regarding fathers’ rights, said Bruce Eden, chairman of the New Jersey Council For Children’s Rights.

According to Eden, Kostner said “somebody is going to have to kill someone to wake them up.”

“It was a general statement, but I was wondering if it was going to be him,” Eden said.

Eden said his organization sent a letter to the court about a year ago detailing the “volatile” situation involving Kostner. A copy of the letter was unavailable Thursday.

Copyright 1994 Bergen Record Corp.
Record Number:  1675176