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Closing Arguments in Yates' Sentencing

Aired March 15, 2002 - 11:46   ET


DARYN KAGAN, CNN ANCHOR: All right, we want to go from the Pentagon to Houston, Texas. Closing statements, closing arguments in the case of Andrea Yates about to begin. The prosecutor -- just waived his chance to make a closing statement, and so now, we will listen to defense attorney Wendell Odom.


WENDELL ODOM, DEFENSE ATTORNEY: ...we're here, and when I talked to you on Tuesday, I guess it was, I told you I was scared, and that was an honest statement. And here I am, standing before you now, discussing, in essence, a matter of life or death. And somehow or another, I'm not scared. Somehow or another, I'm somewhat calm. And the reason for that is because although I may disagree with the verdict, I know that your verdict was based on what you perceive the law to be, what you perceived the law to be.

And I'm going to call a chip in (ph), and insist (ph) that you promise each and every one of us, when we talked individually, (UNINTELLIGIBLE) the judge that you would follow the law. And I believe that the law is quite clear, that unless you know beyond a reasonable doubt that this woman will be a future danger to society, without a reasonable doubt, you will know this woman will be future danger to society, you cannot answer that question "yes." That is what the law tells me.

I also know that have you to determine that there are no factors that mitigate against the imposition in issue of, yes, as opposed to, no, as far as why she should have the death penalty. And I know something else. You may not believe that the defendant was -- you may believe the defendant knew what her actions were as far as wrongfulness at the time of the these drownings, but that does not mean that you don't believe she was wasn't very ill. And there are reams and reams of evidence that indicate how ill this woman was beforehand, and how mentally ill she was afterwards. You, in essence, would have to ignore all of that evidence.

Before you sit, there is nothing that medical evidence (ph) (UNINTELLIGIBLE) the death penalty in this case, so I will call in chip (ph). I will hold you to your oath. I will bind you to the trust that we made with you when you became jury members (ph). It is something interesting, at this point, you are not asked issues like issues of deterrence and punishment. You are asked specific issues, and what our law has done is, it has set up a mechanism by wherein the crime itself may be, but it is not in and of itself sufficient for the death penalty, because a juror has to then answer these other two questions.

So those arguments we heard about deterring others, deterring a person that wants to do a 9-1-1, or fly a plane into New York, that person, whether that deters crime or not, whether it does deter crime, those aren't the issues before you. The issues are laid out. You saw all those issues before. There is nothing in here about determining whether or not she will probably be violent in the future. There is nothing in here that talks about whether or not there is any evidence that mitigates against life as opposed to death, that refers you to deterrence or punishment, although you can certainly argue that.

Punishment, she will be 77 years old before anyone can ever consider giving her parole. She will live the rest of her life -- now, she is (UNINTELLIGIBLE) because she is medicated, and because she now realizes what she has done. When it comes to punishment, if it is punishment you want, there can be no more greater punishment than that. There can be no greater punishment than that.

Let's talk about why I believe that the evidence supports the fact that you cannot make the finding at this point there will probably be a danger in the future (ph). Number one, she is going to be in the penitentiary for the next 40 years. You heard the evidence. She will be in an institution wherein if she doesn't take her medicine, she gets into a psychotic state, they can force her to take her medicine. You heard evidence from doctor Puryear that the only threat she is is either to herself or to her children when she has had a child, and is in this point of postpartum depression.

Either one, she will never have a child, which is what will happen, or two, if by some miraculous event, she does have a child, she won't be able to keep it. She is not a danger to society. Remember what we are talking about, it is to the society that she will be -- she will be in a prison society. She cannot be a danger to a prison society because of the type of personality that she is. She is not like some of these people that are animals, that will have a violent tendency no matter what. The only time she has ever shown a violent tendency is when she becomes extremely mentally ill due to the onset of her child (ph), and we don't have that here.

Number two, what has she done in the past? There is a 17th century philosopher that once said, "no great crime is ever committed, unless it is proceeded by little crimes." We incorporate that concept into our system of whether or not we are going to execute someone. You can't find that person's probability to commit future violence unless have you a belief, beyond a reasonable doubt, that that person will be violent. This woman has never committed a crime, unless you count running a red light to go the Hobby Mart (ph), in her life.

She has never done an act that is -- shows a propensity towards criminal activity or violence (ph). She is not going to be one of these people in the penitentiary that is a threat to guards, or is a threat to any of the other prisoners. It just doesn't exist. Her crime occurred because she was mentally ill, not because she proceeded it was other criminal activity, not because she has a criminal's mind or not because she is an inherently evil person. She is an inherently sick person, that can become even sicker with the birth of a child.

Finally, the facts of the case. I believe the facts of the case indicate that although you think you have found -- not think -- you have found that she never actually complained (ph) -- she did this as an act of love, and that mitigates against killing this woman. It mitigates against the death penalty.

Finally, the state brings you no professional, no expert to tell you that this woman is a future danger. For whatever reason, you have no expert to tell you, you have no evidence, that this woman will be a future danger to society. Remember, we asked Dr. Dietz. Were you asked to make an evaluation as to whether or not this woman would be a future danger to society. The answer was no.

You do have an opinion that she will not be, and we explained why, because of her mental illness, and the time that she might be a danger, and finally, you have heard no evidence that since she has been incarcerated since June the 20, from anyone, that she has ever been a problem, a disciplinary problem or any other type of problem. Never. Not from any of these officers, not from any deputy. She poses no problem. She is no danger, and the structured environment she will be in, she will not pose a danger of future violence. You cannot find, beyond a reasonable doubt, that this woman is a future danger of violence because she's not. She's not.

Mitigating evidence, I think Mr. Parnham is going to talk about it, but you generally know what it is. This woman is ill. She did this out of an act of love. It was a delusional act of love, but she did it out of an act of love, not an act of (UNINTELLIGIBLE). There is no evidence that she conspired this as a result of seeing some TV show. She did this out of love.

Finally, what mitigates against giving her the death penalty? She has never done anything wrong before in her life. All you heard is that when she is not ill, this is a good person. No great crime was committed unless it is proceeded by little crimes. This is not new one (ph).

I called my chip (ph). The evidence, the law says, not to (ph) find beyond a reasonable doubt that this woman is a danger to society. Think about what you are doing here. This isn't an area to tread lightly. Just as the death of those five children caused tremendous turmoil in this county, in this country, and in this world, taking the life of Andrea Yates will also make a stain (ph). Just as you can't go and throw a rock in the Galveston Bay without disturbing all of the waters of the ocean, you can't take any human life, you can't take any human life, without disturbing all of mankind.

And I tell you as we stand here, that if you follow the law, you do the right thing. By saving her life, you are giving her life. If you don't follow the law, the consequences are that a woman dies, and we all have to live with that. All of us.

KAGAN: We're going to listen in now to another defense attorney for Andrea Yates. Here is George Parnham. GEORGE PARNHAM, DEFENSE ATTORNEY: This will be my final opportunity to talk with you as part of the defenders of Andrea Yates. I won't rehash my feelings with you, as a jury, thanking you for your participation. You know that. And the sacrifice that you have made, you know that. We are here now, at this last hour, to determine what you will do with Andrea Pia Yates, to determine whether or not she lives for as long as her circumstances dictate, or if she dies at the hands of the state of Texas.

Mr. Odom has talked to you about the law that you are to apply, and I hope to be able to give you some information relative to the evidence in this case that would suggest to you that the proper, and the righteous, and the true thing to do is to save her life and allow her to live. During the course of this testimony, you heard, and I will begin at the end, you heard a stipulation read into evidence. And the stipulation in evidence basically says, that the program that was testified to by Dr. Dietz, of "Law and Order," and I will read specifically as testimony, and I asked the question. I don't know if you recall this or not.

Now, you are a consultant, are you not, on the television program known as "Law and Order," and he responded, Two of them.

Did either one of those deal with postpartum depression or women's mental health, and his response was, As a matter of fact, there was a show of a woman with postpartum depression that drowned her drowned her children in the bathtub, and was found insane, and it was aired shortly before this crime occurred.

Now, what is the significant of that type of testimony?

Well, first of all, it is not true. You heard that in the stipulation. That show never existed. Secondly, it goes to the issue of premeditation and devising a plan. And I think it is important for this jury to incorporate that error, as testified to under cross- examination, by their expert, in making a determination as to whether or not this woman continues to be or will be a future danger. That is, is she going to be the individual that, in all probability, or an individual that in all probability will commit future acts of violence.

And if you believe, and you have a right to believe, in the guilt or innocence phase, the testimony of Dr. Dietz, as to the plan that Andrea Pia Yates incorporated in order to be acquitted by a jury, by reason of insanity, as a result of following a blueprint laid out in "Law and Order," if you believe that, then you can conclude that she is devious, she is deceptive, she is premeditated, and possibly a future danger. It didn't happen, guys. That show never existed.

Now, I don't fault the prosecution for that, because I am convinced Mr. Owmby had no idea, and but for the efforts on the part of the defense team, that information probably wouldn't have come to light. You were inconvenienced yesterday, and it is because of the efforts that were generated in order to establish this falsity, that was the reason for the delay. Was it important to the prosecution? We know that our chief witness, Dr. Lucy Puryear, testified on cross- contamination, when asked by Mr. Owmby, and again he is unaware of the inaccuracy of Dr. Dietz's testimony, you know she watched "Law and Order" a lot, right?

I don't know.


And did you know in the weeks before June 20th, there was a "Law and Order" episode where a woman killed her children by drowning them in a bathtub, and was defended on the basis of whether she was sane or insane under the law, and the diagnosis was postpartum depression, and in the program the person was found insane, not guilty by reason of insanity, did you know that?


If you had known that, and you had known Andrea Yates was subject to these delusions, not that she was subject to the delusion of reference, but that she regularly watched "Law and Order" and may have seen that episode, would that have changed the way you went about interviewing her? Would you have investigated whether or not she got the idea somehow she could do this and not suffer hell or prison?

Dr. Puryear responded, I certainly wouldn't have asked her that question, no.

Would you have -- you didn't have to ask her that question, but you could you have explored that.

If I had known she had watched that show, I would have asked her about it, yes.

Well, do you think it would be a good idea to maybe do that now if you had the opportunity?

To do what, says the doctor.

To ask her about that.

I would. I would like to ask her about everything, yeah.

There was no evidence in this case -- there was no evidence in this case, other than this, that suggests that there was an objective reality, a blue print for committing an offense that would give a woman, either ill or sane, rational, a guidepost and a direction to leave a environment that was bad for her, distasteful to her, whatever adjective you want to use, and to have a plan to walk out of this courtroom, because it didn't exist. And I submit to you, ladies and gentlemen of this jury, that but for, and I don't know how important that testimony was to you, maybe it wasn't important at all, but we know that is the only item of objectivity that was presented during the course of this case.

You heard testimony, in the punishment phase of our trial, from family members, from friends, and we will recapitulate that in a moment, but there is one thing that I want to stay to you about the very brief period of Dr. Puryear's testimony yesterday, because I think it is important that this jury be able to crossover, in an effort to identify with the person of Andrea Yates. You have a right to depend on the credibility of witnesses. I mentioned lawyers' words, have you a right to hold us to the degree of credibility that you would expect, and you need, in making determinations about what to do with the person's life, and that is where we are.

You bet it was difficult. It was difficult for everybody on this defense team, and it dawned on me, that it was difficult because we couldn't identify -- we couldn't identify the woman with the act. The act itself defined her, and it took a long time for us to be able to absorb the reality of what she did, and to draw a line between what she did and who she was, and who she is. And that is what we are trying to convey to you, who she is.

We bring you family members, we brought you her mother, who talked to you about the goodness of her daughter, the young girl that helped the neighbors down the road, the elderly people, who took care of them, how proud she was in school. What a good student she was. Who proud she was to be a nurse. And, of course, Mother Kennedy, talked in terms of the loss of her own family.

We brought you school friends, we brought you Molly McGuire Stefano (ph). Molly Stefano (ph), who grew up with Andrea Pia Yates, went to school, swam with her, shared a compassion, and shared a certain level of identification in athletics. You know, my mother used to say, sometimes what you say speaks so loudly, I don't know who you are. Well, the very fact that we have people like Molly McGuire Stefano (ph), and people like Marlene Wark, fine, good, credible, nice, honest, intelligent people, speaks volumes of who she was. Their friend is not Andrea Pia Yates who, on a daily basis, ingests 15 milligrams of Haldol. This morning she takes her dose, and she will take that dose tonight.

Those people came here to tell you what they knew about her, how much they cared for her, and how much they care for her now. Joe Lovelace (ph). Joe Lovelace was our first witness, and Joe told this jury that basically, as a result of a personal issue with his family, he has devoted his life as a volunteer for the National Alliance of the Mentally Ill. Past president of the National Alliance of the Mentally Ill. Retired lawyer. Maybe we will all be there one day.

He told you that because of his son, that he has made every effort on a volunteer basis to improve the status of mental health in this state, he told you about the prison system, and NAMI, for whatever it is worth, has been effective in developing a sophistication -- or at least improving within this very system, that if you allow this woman to live, she will be able to participate therein. She will be able to take advantage, or at least to be a recipient of a sophisticated level of mental health treatment that is present within our system.

We bring you Dr. Puryear, the same doctor you heard about in direct examination. Dr Puryear testifies as far as she was concerned -- and you recall the testimony -- that Andrea Pia Yates would only suffer as a result of the birth of a child. Mr. Odom told you it was impossible, and it is. This is not going to happen. This is not the type of individual that runs around the community hijacking, maybe occasionally rung a red light; it is not going to happen. And Dr. Puryear told you that, as far as she was concerned, that she is not and would not define the issue of future dangerousness.

We bring you other family members, we bring you Aunt Fairy. I cannot remember her last name, but the term "Aunt Fairy" is stuck with me. Her nickname; it not something I make up. And again, Aunt Fairy, who she is, speaks so loudly. Aunt Ferry spoke on behalf of her niece-in-law, a Presbyterian minister that was willing to come down here and tell you about her love for this woman, about how she is able to overcome what occurred with who she is. And I am talking about Aunt Fairy.

Isn't it remarkable -- I mean isn't it absolutely remarkable -- that those five kids who met tragic deaths, and the image and memory of those five children, that they have been able to forge a family united, a family that loved those children, to come down here and testify it for the very person that took their lives? You know, if I were Rusty Yates, or if I'm Aunt Fairy, or if I am Dora Yates, or maybe if I am Mother Kennedy, or brothers, or in-laws, or friends, I am not sure if I would be in this courtroom today as a witness for the very person that did that. But they are here, and they talked about their feelings for her. And even though they were not able to tell you that they pled for her life, you know that is what they were doing: They were pleading for her life.

There is a well-worn but, I think, time-honored praise, and I will leave you with this thought. I swore I would never say this to a jury, but this is my chance. John Donne: "No man is an island. The death of any man diminishes me, for I am a part of mankind, and therefore never sin to know for whom the bell tolls; it tolls for thee." It tolls for all of us, for we are a part of the system and we are a part of mankind.

Just take this back to the jury room with you. I want her to live.


KAYLYNN WILLIFORD, PROSECUTOR: I want to thank you for your verdict, for listening to the evidence, for being away from your family for four weeks, to listening to things that were unimaginable, for having to go through and endure the deaths of Noah and John, Paul, Luke, and Mary, because that's what this case is about. You 12 were accepted by the state and the defense to make a decision on this case: the guilt or innocence of Ms. Yates and the ultimate punishment that she will face for what she chose to do on June 20 of 2001.

During this time, that you have been away from your families, you 12 have had the unique opportunity to hear all of the evidence in this case. Only you 12 have seen the true picture of what occurred. And after you have heard the true picture of what occurred, realizing that Ms. Yates had a severe mental disease, you also realized that during that time, she knew right from wrong. She made a choice, a choice that she had planned and thought and deliberated on, and followed it through, despite the pleas of her children.

These laws are set up to protect the children. And I want you, when you go back there and deliberate, to take one piece of evidence back with you. I'd ask that you take state's exhibit 242 with you, because this is what this case is all about: these children. Mr. Odom said you can't take a life without disturbing all mankind. It is very true: Your lives have been changed, and they will always be changed because of the choices that were made in taking these five children's lives.

And when you go back there and you answer these special issues, the first special issue is you can consider all of evidence of the crime in determining whether or not there is a probability of future danger, and you will remember from jury selection that we talked about the fact that the crime itself can be sufficient for the jury to come back and answer special issue number one, yes. It is a appropriate answer, because this crime is a horrific proportions. This crime is a crime of the ultimate betrayal, the ultimate betrayal of a mother to her children, and it is exactly why this law was created, to protect the children, because those children never had a chance.

Maybe if they had figured out what was going on, maybe if Noah or John had been able to get out of the house, one of them would be alive today. But the reality is Ms. Yates made the decision the night before; she had been contemplating this some two years before. And she set about doing this horrific crime in an hour. Those children never had a chance.

And you need to think about those children too, because mankind has been disturbed by taking their lives. Mankind has been disturbed in that a 7 year old, a 5 year old, a 3 year old, a 2 year old, and a 6 month old will never experience the joys and life chances that their mother did.

On February 26, while we were in trial, Noah had a birthday. He turned 8 years old. All of these children had a birthday during the time this case has taken to come to trial.

So when you go back there and answer that question, you need to think about this crime, and what those children endured and the pain and fear and terror that they went through as they died, because it is not just about Andrea Yates, it is about Noah, John, Paul, Luke, and Mary, children that I hope you will remember the rest of your life.

So there is sufficient evidence and proof beyond a reasonable doubt that you can answer special issue number one yes. And whatever you decide the state will accept. It is certainly our position that you could answer that question yes, based on the crime itself.

Special issue number two is the mitigation issue. You have heard a lot of evidence of mental illness. But is that sufficient mitigation to overcome the deaths of five children? Is it mitigating that Ms. Yates had all of the benefits of a husband that took her to the doctor, had the benefits of health insurance, had the benefit of a doctor hospitalization, a psychotherapist, a family, a best friend, a support structure, and she turned her back on those. Is that mitigating? Or is it aggravating? That is for you to decide.

It is my position that you can certainly answer that question no. But again, you 12 make the decision on the evidence. You 12 decide the mitigating evidence: Is that mitigating, or is that aggravating?

This is a case that should have been heard and has been heard by the public. You 12 have lived through and suffered through the evidence of the deaths of those children. You 12 have a unique perspective, that no one else has and should not second-guess your decision on guilt, innocence, or the decision you make on answering these special issues.

Whatever decision you make the state will accept. There needs to be closure, there needs to be a resolution. You 12 have listened intently, you have been perceptive in the evidence as it has been presented. I ask that you go back there and talk with each other about these issues.

In the crime itself, the horror in which these children met their fate, it's sufficient to answer special issue number one yes. And you would submit to you that the fact that Ms. Yates had the benefits of health providers, family, friends and turned her back on those and made the choice of June 20 shows that there is not sufficient mitigating evidence to overcome that. So you could return a answer of no. Whatever you decide the state will accept. But it is in your hands. God be with you.

JOE OWMBY, PROSECUTOR: We got to know the Yates children in snippets of information over a six-month period. We could not know them the way you know other children, the way you know one is different from another even at the very young age. But we could see just from what people told us, their personalities and how they were. These were children that had opportunities to make contributions. They were intelligent children, they were curious, they were rambunctious, they were all of those things that make children children.

They had pictures on their wall -- and I do not know if you can see them in the (UNINTELLIGIBLE) photos -- pictures on their walls of rocket ships. They were interested in what their parents did. I do not know if watched again the video, but Noah was interested in what makes those caterpillars grow and what makes those butterflies butterflies. And he wore those insects on his shirt, what he likes -- children like to do that.

Every trial is a vindication that your life you is worth something to the rest of us. On one level, that is what a trial is about. You hear testimony here about the the amount of money spent, what happened, how the state hired experts, and all of that, and that is because every trial is a vindication that you are important.

Now, I want you to understand something, that it is not every day that we come down here,and try capital cases involving people like Noah, John, Paul and his brothers. But every time we try a case it is because we are convinced that that person's life was unique and should only be taken away by God, and if it is taken away by man, that it has to be justified beyond our moral question. And that's why we tried this case. And that is why we try this case as a capital case, because the enormity of this crime was such that it deserved the greatest attention that we as prosecutors could bring to it.

There is nothing I can do to restore these lives. The death penalty won't restore their lives, but it is important, it is essential, and no one could rest unless we made it clear that these five children were unique individuals, and that no one has the right to take their lives without justification.

There was some testimony that you heard during the the trial about motivation, people's motivation and how behavior is a mixture of motivations. The behavior you have seen in this case is a mixture of several motivations on several levels, and that is what the evidence is telling you. On one level, it is Andrea Yates being trapped in a relationship. On another level, it is her mental illness not allowing her to do should have done. On another level, it is being narcissistic, concentrating on your problems, concentrating on yourself to the exclusion of all others. And maybe that had something to do with the mental illness, I don't know.

In any case like that, it is difficult to say what these issues normally mean. We know that the killing of five people is sufficient to call a person dangerous, to bring into question whether there is a probability they he will commit criminal acts of violence in the future, if that is the the only thing you know about them -- and I mean if that is the only thing. It brings into question if there is a probability that they will commit criminal acts of violence that constitutes a continuing threat to society. Whether you know their motivation, whether you know the state of their mental health or not, it bring that into question.

We submitted this case to a jury trial partly because there is no way to base a recommendation on what to do for something you have never seen before. This combination of factors we pray will never be repeated in any life ever again. Who she married, what happened during the marriage, her mental health, the way it was chosen she would address the problems of her mental health, the homeschooling, the choices about where to live and when to live there -- we pray that that will never be repeated ever again. But since we have never seen that combination before, we presented it to you, a jury, to determine one, whether there is a probability that she will be dangerous in the future, but, more to the issue in this case, whether there is sufficient mitigating circumstance to warrant a sentence of life

OWMBY: ... to warrant a sentence of life rather than the death sentence, considering the crime and the potential for dangerousness.

I was challenged several times by witnesses that I did not understand mental illness, and that's probably true from the standpoint of these psychiatrists. But I want you to know that I have seen, very seriously, I have seen the affects of mental illness, both as a victim, close to me, and as a person who was mentally ill and committed acts of violence toward others that was close to me.

You understand the effects of mental illness, but that's not the question here today. The question is, is there sufficient mitigating circumstances that a sentence of life should be given and not a death sentence?

If you answer the question, yes, there are sufficient mitigation, mitigating evidence, to warrant a sentence of life rather than a death sentence, you would have done the right thing. You saw the evidence, you talked to each other, and you know, and during your deliberations, you will discuss with each other and you will determine whether that is the right and just answer. If you determine it is not, you will have done the right thing. So far, you have been thoughtful, you have followed the law, and I expect that's what you will do now. I do not expect that if you find there is sufficient mitigating circumstances, you will have found it because of any sympathy for Andrea Yates. I do not expect that if you find there are sufficient mitigating circumstances, you will find it because you have ignored the lives of these children. I know you did not.

I suspect that if you find insufficient mitigating circumstances, you will have found that looking at all of the circumstances from the defendant's standpoint and from society's standpoint, that is the answer in this case, and in these unique circumstances.

I do not expect that if you find that there are insufficient mitigating circumstances that you will tell anyone else it is all right to commit murder, and we will not take your verdict as saying it is all right to commit a crime this horrendous, because we will have examined and we will know as you do the unique circumstances that apply to this case. If you find they are not sufficient mitigating circumstances, that is your decision.

I appreciate the opportunity to present this case to you. Some people don't understand how I, rather than someone else, came assigned to this case. And it's basically, as I said about one officer, it is because I happened to be standing there, it was my turn to do this task, and that's why I rather than someone else is doing this task. What I hope is that, in an ultimate sense, I was the right person to do it.

You did the right thing on the guilt or innocence, you followed the law, came to a decision based on the law and the evidence. I know you will do the right thing during the punishment phase of the case, and I appreciate your attention.

UNIDENTIFIED FEMALE: Ladies and gentlemen, once again, given the hour, we will go ahead and recess you for lunch. After you have had lunch, I will then submit the charge to you, and then and only then are you to begin your deliberations on the special issues.

All rise for the jury please.

BILL HEMMER, CNN ANCHOR: Very soon, this same jury, made up of eight women, four men will decide whether Andrea Yates spends the rest of her life in prison or is sent to death row in the state of Texas. Closing arguments just concluding there in Houston, during the penalty phase of the trial.

Cynthia Alskne, listening and watching along with us in Washington. What struck you, Cynthia, listening to that?

CYNTHIA ALSKNE, FMR. FEDERAL PROSECUTOR: Well, there was a new controversy that erupted today about this "Law & Order" episode that was something we didn't expect to hear in the closing arguments. Apparently, the prosecutors expert witness mentioned this "Law & Order" episode, where a mother murders her children by drowning them and gets off on an insanity defense, and that the expert mention it had as a possible manner or method in which Andrea Yates came up with her crime. The defense attorneys found out after the verdict that that could not have happened, because the "Law & Order" episode never aired, and so there has been a legal back and forth about that, ultimately resulting in the defense attorneys making a motion for a new trial, and them losing that.

So there is that battle that was had today that we did not expect.

HEMMER: Cynthia, what about defense attorneys saying repeatedly, asking the question, is she a danger to society? Is that the threshold of the law that must be met here for jurors?

ALSKNE: Yes, they have two questions they have to answer. The first is, is she a danger or threat to society? And the second is, if so, are there any mitigating circumstances that would suggest that she should not get the death penalty?

And the defense attorneys think pretty strongly, because she has no prior criminal record and because of her mental illness, that she is not a threat to society, indeed that the only person she's ever been a threat to was herself and her children, and she has no more children.

HEMMER: With regard to the prosecution they presented no evidence, no witnesses during the penalty phase. Curious to get your read on that. Good strategy, fair strategy? Interesting? What?

ALSKNE: Fair and interesting. I truly believe they decided to leave this one up to the jury to make the decision.

HEMMER: Almost like they were saying, we respect your decision, go ahead and think about it. You are capable at this point?

ALSKNE: Right, it's either way you decide, it's OK with us, but I felt from watching the argument, particularly the female prosecutor, would prefer that they give the death penalty, everybody seems to be comfortable with whatever answer they get. After all, they've won the case already, so it doesn't really matter to them what the final result is.

HEMMER: And quickly, Cynthia, eight women, four men, does that suggest anything based on history?

ALSKNE: I don't really know, but I would say, given this evidence, you would think that they would spare her life, just based on sort of the numbers of the amount of women that go to death row. On the other hand, not wanting to be too much like a lawyer, but on the other hand, the fact that they found her guilty of murder in 3 1/2 hours would suggest this is a pretty tough jury.

HEMMER: We will see after lunch time once the jury once again starts its deliberations in the penalty phase.

Cynthia, thank you. Cynthia Alskne in Washington.




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