BANGOR – Investigators acknowledged this week that determining whether the infant burned behind a Milo home earlier this month was born alive or stillborn would be extremely difficult and perhaps impossible.

If it can’t be proven that the baby took a breath, then the charges against anyone involved would become very limited.

Police claim they found the homeowner, Ralph Disley, burning the infant’s remains in a burn pile behind his Lyford Road home on Friday, April 2. Police were tipped the remains were on the property by someone who had visited the family. Disley was arrested and charged with abusing a corpse, but he was released on bail and charges were dismissed.

“The Medical Examiner’s Office has told us that they may not ever be able to determine whether the baby was alive or how it died,” Department of Public Safety spokesman Stephen McCausland said.

If the medical examiner can’t make that determination, then it’s possible the only charge that could be filed against anyone involved may be failing to file a death certificate. Death certificates must be filed with a town clerk if the baby involved is more than 20 weeks into its gestation, according to the Attorney General’s Office. Failing to file a death certificate is a misdemeanor crime, punishable by up to a year in jail.

If the state can’t prove the baby was ever alive, they can’t charge anyone with its murder, said William Stokes, head of the criminal division for the Attorney General’s Office.

“These cases are very frustrating,” Stokes said, “and we seem to be getting about one a year, where a baby is found in a dumpster or a trash bag or buried in a trunk in an attic. Often, by the time the body is discovered, the amount of decomposition makes it difficult to impossible to determine whether the baby was born alive or not.”

Dr. Margaret Greenwald, Maine’s medical examiner, acknowledged the difficulty of such cases. While not speaking in regard to the Milo case, which remains under investigation, Greenwald explained that the most common method for determining whether a baby was born alive would be to see whether the baby’s lungs were expanded.

Unfortunately decomposition also can cause lungs to expand, making an exact determination difficult.

Maine law is very clear that no one can be charged with the murder of a fetus, even if it is fully developed, unless it was born alive and took a breath. That law was heavily criticized when Heather Fliegelman Sargent, who was eight months pregnant, was stabbed to death by her husband. Maine is on a shrinking list of states in the country which have no laws governing the injury or death of a fetus.

The investigation into the Milo incident continues, and McCausland said investigators still hope the Medical Examiner’s Office can make some determination. Meanwhile, Disley has hired an attorney, and his wife and two teenage daughters have hired another. McCausland said the family was not cooperating with the police investigation.

McCausland acknowledged this week that Special Agent Ken MacMaster had not double-checked on Disley’s original court date and therefore missed the court appearance last Monday. As a result, the original charge of abusing a corpse was dismissed.

“Basically, when they took him in on Friday, they asked to have his appearance scheduled for the next regular day that state police have cases in court. What he didn’t realize was that that day was Monday,” McCausland said.

Abuse of a corpse, which also is a misdemeanor crime, may not have been an appropriate charge anyway, Stokes said.

“To tell you the truth, we simply have to wait and see what we find out from these tests to even begin to know what, if any charges are appropriate here,” he said.

In the meantime, the Medical Examiner’s Office plans to test the infant’s DNA in order to determine who its parents are.