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Postpartum psychosis: A difficult defense

By David Williams

ATLANTA, Georgia (CNN) -- The attorney representing a Texas woman accused of drowning her five children will face challenges if he chooses an insanity defense built on postpartum depression, legal experts say.

Andrea Yates faces capital murder charges in connection with the deaths of her children, who ranged in age from 6 months to 7 years.

Her attorney, George Parnham, said he is considering using an insanity defense. But an attorney must be able to make juries understand the client's state of mind and the nature of the affliction, according to a legal scholar and a defense attorney.

"In many of these cases ... they're completely psychotic when they kill their children, they get treated, the hormones dissipate and they are totally sane," said DePaul University law professor Michelle Oberman of the defendant. "So they go to trial completely sane and the jury is asked to believe that the sane woman in front of them was absolutely crazy six months before. And that's a hard sell, unless you really understand the process of postpartum psychosis."

Houston defense attorney George McCall Secrest said in an insanity case the defense must prove that the defendant did not know right from wrong at the time of the crime. Secrest successfully defended Evonne Rodriguez, who was found not guilty by reason of insanity for the 1997 killing of her 4-month-old child. She had told police she believed that the child was possessed by demons.

"It's a complicated mix of things because the jury is going to have to focus not only on the facts of the actual offense on trial but they're going to have to understand the mental state of mind of the accused," Secrest said.

"That frequently is not an easy thing to deal with because it's very typical that you're dealing with a history of psychiatric, psychological and emotional issues."

Laws vary by nation

Postpartum depression is recognized as a legal defense in at least 29 countries, including Great Britain, Canada, Italy and Australia, Oberman said. Those countries have infanticide laws, which state that when a woman kills a child under the age of 1 and she can prove that the "balance of her mind is disturbed" by reasons relating to giving birth, the maximum charge the woman can face is manslaughter.

CNN's Carol Lin interviews attorney Dick DeGuerin about using the insanity defense in court (June 28)

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"The practical result of these statutes is that these women receive probation instead of jail time and they receive sentences that require probation plus counseling," Oberman said. In those cases, she added, the women do not have to prove the much higher standard of insanity.

The laws vary between countries, with some covering a woman who killed any of her children, while other nations' laws only cover the killing of a newborn, Oberman said.

The British infanticide laws were formalized in 1922, said Oberman, who authored the book "Mothers Who Kill Their Children: Inside the Minds of Moms from Susan Smith to the 'Prom Mom.'" "They said ... 'We understand that we see these cases as being a distinct, unique set of cases. It is different when a mother kills her child, It's not like other murders, so we treat them differently,'" she said.

Philip Resnick, a psychiatry professor at Case Western Reserve University, said infanticide laws could seem arbitrary.

"Those infanticide acts, particularly in England, say that the balance of the mind is disturbed by some mental or physical thing related to child birth, and they limit it to the first year by law. In other words, if a baby is killed after 364 days, the mother is charged with infanticide, if it's 370 days, they are charged with murder."

Postpartum psychosis cases rare

As many as 80 percent of women suffer minor mood changes or "baby blues" after giving birth, but only about 10 percent to 22 percent of women suffer postpartum depression, said forensic psychiatrist Dr. Michael Welner of New York University School of Medicine.

Welner said in rare cases -- up to about 1 in 500 births -- women experience postpartum psychosis, a far more serious condition that typically ends within days of giving birth.

In the United States, postpartum depression would generally be used as part of an insanity defense. If the defendant is found guilty, the defense can present their client's mental condition as a mitigating factor for the jury to consider during sentencing, Secrest said.

Under Texas law, a person found not guilty by reason of insanity is committed to a psychiatric facility. A judge annually reviews the case and decides if the person should be released. The person cannot be held for longer than she would have been jailed if he or she had been convicted.

In a capital murder case such as the Yates case, however, she could be confined for the rest of her life.


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