Worst-case scenario

I knew it was coming, but it's still hard to accept: In Texas, mental illness is not a defense to murder.

By Suzanne O'Malley

Published March 14, 2002 2:23AM (EST)

I was talking to Rusty Yates an hour before the verdict in his wife's murder trial. "The only thing I'm not prepared for," he said, "is a guilty verdict. The cruelest thing I have ever personally witnessed in my life," he went on, "was Andrea being forced to listen to the closing arguments of the prosecutors." After only a few minutes, he said he'd "stopped trying to count the lies."

Through nearly nine months of reporting the Andrea Pia Yates case, I had remained fairly certain the verdict would be guilty. Not because I'm a genius at predicting legal outcomes, but because I grew up in Texas with its "shoot first, ask questions later" brand of justice.

I sought corroborating opinions of precisely two people -- both of them seasoned veterans of Texas justice. The first was a hardworking Dallas civil attorney named Edward Brandt, who has an office in a shopping mall and never makes the headlines. The second was headline-maker Burl Osborne, an executive at Belo Corporation who recently retired as editor and publisher of the Dallas Morning News. Insanity defenses, as a matter of record, do not fly in Texas, they both reminded me. It would be guilty. Life was the bone of mercy that would be thrown Andrea Yates in view of what was shaping up to be a well-documented and nasty case of mental illness.

Giving further weight to the crush of conventional wisdom was the particular geography of the Yates case. In a way, Harris County, where the trial took place, was in a political bind. Texas has historically led the nation in executions (Oklahoma recently took the lead), and Harris County -- a large jurisdiction with a large minority population -- leads Texas in putting people on death row. There is little question that the county would have asked for the death penalty for an African-American father who confessed to the same crime. Being white and female made Andrea Yates, however sick, an equal opportunity criminal.

But for all that I knew and everything that was said, I never imagined that the guilty verdict would be returned in little less than three and one-half hours on the one-year anniversary of Andrea Yates' father's death. Or that the only testimony the jury would request for review was one large-print poster of the Texas insanity statute and a tape recorder for playing Andrea Yates' confession and 911 tapes.

When I heard what the jurors had requested, I took a sharp, involuntary breath and winced. Wendell Odom, one of Yates' attorneys, noticed my reaction and said, "Now don't do that." Over time and courtroom exposure to Andrea Yates' medical history, the press corps seemed to list toward sparing her life in favor of lifetime supervision in a mental health institution -- in Texas, a fate too good to be true. It is a choice that can only be imposed by a judge, and only when a defendant is first judged "not guilty" by reason of insanity. In other words, a Texas-style Catch 22.

Even more stunning to me in the wake of the verdict was that jurors in the trial took less than half the time to find Andrea Yates guilty that it took a previous jury of 11 women and one man to find her competent to stand trial back in June. Jurors in the competency phase spent an extraordinarily long (for Texas) eight and one-half hours in what is generally a "rubber stamp" procedure. Prosecutor Joe Owmby had explained to them that their legal task was to determine whether "Yates is rational today -- not was she rational at the time of the crime." A Houston newspaper reporter explained it differently. "If you can walk, you're competent," he said of the typical scenario.

When the jurors in the competency proceeding finally delivered their verdict, some were visibly shaken. The initial poll taken by that jury was reliably rumored -- though never reported -- to be eight for incompetence; four for competence. Somehow, over the course of deliberations, the vote became unanimous for competence. It seemed possible that in their gut, many were convinced that Andrea Yates was not competent to assist her attorneys in her own defense. But the responsibility of the juror is to vote the letter of law, not the gut. What actually happened to upset the early balance remains a mystery: Those jurors are still under a strict gag order that will not be lifted until after the sentencing phase of the Yates trial is complete.

What was the demonstrable difference between the two juries? The jury that delivered Tuesday's guilty verdict was "death qualified." In a Texas capital murder case all potential jurors must be willing to vote for death, a rule that essentially eliminates half the potential jury pool and substantially skews the jury toward conviction and away from a "not guilty by reason of insanity" verdict. Harris County District Attorney Charles Rosenthal has been accused of insincerely asking for the death penalty in the Yates case in order to insure a conviction. He denies the accusation.

In a Texas capital murder case there are two choices of punishment: death by lethal injection or life in prison. Effectively speaking, juries make up their minds on the punishment at the time they render a guilty verdict, according to veteran Houston criminal defense attorney Dick DeGuerin. The speed with which the guilty verdict was reached in the Yates case suggests that jurors decided to show Andrea Yates mercy by leaving her with life. This also is my opinion and -- after reviewing more than 2,000 pages of medical records -- my hope.

The jurors answered the questions put to them by Texas law: Did a preponderance of the evidence show that Andrea Yates knew the nature and quality of her act when she drowned her children, and did she know right from wrong? Their answer put the rest of us on notice: In Texas, mental illness is not a defense to murder.

It was a victory for the prosecution -- the best they could hope for. Yet there was no rejoicing about the verdict in the Harris County district attorney's office Tuesday night. Says Rosenthal, "When we get a conviction on a death penalty case, nobody in this office goes home thumping their chest."

Suzanne O'Malley

Suzanne O'Malley, an investigative reporter, is a consultant for "Dateline: NBC" on the Andrea Yates trial.

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