PORTLAND — A retired Maine medical examiner told a judge in Cumberland County on Tuesday that she would reclassify the 1979 death of an infant in Brunswick from Sudden Infant Death Syndrome to asphyxiation, a move that the state seeks so it could pursue a criminal case.

Nathan Hagar, who was 4 months old, died in his crib in a Brunswick apartment on May 9, 1979. The cause of death was classified as SIDS, but the baby’s father, Burton Hagar, in subsequent years confessed to more than a dozen people that he smothered the infant with a pillow. Maine State Police videotaped his admissions in 1991 and last year.

But he wasn’t charged until a year ago, after he confessed twice more to state police who were part of a special “cold case” unit that reopened the case in early 2017.

The case had been stymied because the state in 1979 had classified Nathan Hagar’s cause of death as SIDS, an unexplained death of a baby that was considered accidental.

That meant that police had a confession, but no crime. In legal circles, it’s known as corpus delicti, meaning prosecutors must have concrete evidence of a crime to move forward on a case.

Hagar’s lawyer tried to maintain Tuesday that the 39-year-old status quo in Hagar’s case, saying that there’s no reason to reclassify the death.

But the retired medical examiner called by the state to testify as an expert witness told Superior Court Justice Thomas Warren that she would change the cause of death to smothering asphyxiation and the manner to murder. Margaret Greenwald, who arrived in Maine nearly 20 years after Nathan Hagar’s death, said that finding fits the medical records and autopsy results on Nathan Hagar, but that her primary basis for the change is Burton Hagar’s confessions.

MULTIPLE CONFESSIONS

Hagar’s lawyer, Verne Paradie, argued that’s not enough. He said Maine law allows confessions to be used as evidence against someone, but the state also requires a specific finding of a crime, which isn’t the case as long as the official cause of Nathan Hagar’s death is SIDS.

Paradie moved to have the charge against his client dismissed, based on the lack of corpus delicti.

Prosecutors pulled out all of Hagar’s confessions to put in front of Warren on Tuesday. Hagar, they said, had confessed to four of his five wives – but not to Nathan’s mother, Venus Hagar – along with counselors, psychiatrists and state police detectives. Police were able to access the confessions to his counselors because Hagar had signed away his right to confidentiality with mental health professionals after the state reopened its investigation last year.

Prosecutors also called a retired Brunswick police officer who said he recalled seeing a pillow, with a spot of mucus on one side, in the crib with Nathan when he was sent to the Hagars’ apartment 39 years ago.

But the case was shifted to a detective shortly after Mark Phillips went to the scene. And, Phillips said, after he heard doctors at the hospital say the death was likely due to SIDS, he wrote a brief report on the incident and finished his shift.

“It didn’t look like a crime scene,” he said. “I don’t believe I had probable cause to believe a crime had been committed.”

FOUND FIT TO STAND TRIAL

In the 1991 videotaped confession, played for Warren on Tuesday in the Cumberland County Courthouse, Hagar cried at points, but could offer no reason for killing his child.

“Why I did it, I couldn’t tell you,” he said. “I have some ideas, but I’m not positive.”

Paradie said Hagar’s confessions have varied and shouldn’t be relied on and certainly shouldn’t be the reason for changing a cause of death.

For instance, Hagar told some people that he tried to kill Nathan by smothering him with a pillow two weeks before the actual death, others that he tried two days before the death.

He has told people he smothered Nathan to hurt his father, who had subjected Hagar to a tough upbringing. He has also said he wasn’t ready to be a father, and that Nathan had been crying nonstop. Burton Hagar was jealous of the attention the baby got and he felt he had lost his freedom after getting married and having a child.

He also told some people that he had been drinking and smoking pot on the night Nathan died and can’t really remember a reason for smothering the baby.

Warren has asked for more briefs from both sides and isn’t expected to rule until late May or June. But the case likely won’t be over then.

Whether he dismisses it or not, the losing side said they will appeal. Both Paradie and prosecutor Meg Elam said the state needs some clarity on how much concrete evidence of a crime is needed for a trial.

Paradie said the two sides have an agreement that if Hagar loses and the case continues, he will enter a contingent plea of guilty to manslaughter with the sentence for the 63-year-old capped at 15 years. Then Paradie will launch his appeal.

Paradie said that he had Hagar’s mental competency evaluated and he was found fit to stand trial.

Hagar appeared to sleep through much of the six-hour hearing.

Burton Hagar, right, in court Tuesday with attorney Verne Paradie, has confessed numerous times that he smothered Nathan Hagar, 4 months, in May 1979. (Shawn Patrick Ouellette/Portland Press Herald)