The US Geological Survey recorded a minor earthquake this morning with its epicenter near Wasilla, Alaska, the probable result of Sarah Palin opening her mail box to find the latest issue of CounterPunch magazine we sent her. A few moments later she Instagrammed this startling comment…
The lunatic Right certainly has plenty of problems. We’ve made it our business to not only expose these absurdities, but to challenge them directly. With another election cycle gaining steam, more rhetoric and vitriol will be directed at progressive issues. More hatred will be spewed at minorities, women, gays and the poor. There will be calls for more fracking and war. We won’t back down like the Democrats. We’ll continue to publish fact-based critiques and investigative reports on the shenanigans and evil of the Radical Right. Our future is in your hands. Please donate.
Yes, these are dire political times. Many who optimistically hoped for real change have spent nearly five years under the cold downpour of political reality. Here at CounterPunch we’ve always aimed to tell it like it is, without illusions or despair. That’s why so many of you have found a refuge at CounterPunch and made us your homepage. You tell us that you love CounterPunch because the quality of the writing you find here in the original articles we offer every day and because we never flinch under fire. We appreciate the support and are prepared for the fierce battles to come.
Unlike other outfits, we don’t hit you up for money every month … or even every quarter. We ask only once a year. But when we ask, we mean it.
CounterPunch’s website is supported almost entirely by subscribers to the print edition of our magazine. We aren’t on the receiving end of six-figure grants from big foundations. George Soros doesn’t have us on retainer. We don’t sell tickets on cruise liners. We don’t clog our site with deceptive corporate ads.
The continued existence of CounterPunch depends solely on the support and dedication of our readers. We know there are a lot of you. We get thousands of emails from you every day. Our website receives millions of hits and nearly 100,000 readers each day. And we don’t charge you a dime.
Please, use our brand new secure shopping cart to make a tax-deductible donation to CounterPunch today or purchase a subscription our monthly magazine and a gift sub for someone or one of our explosive books, including the ground-breaking Killing Trayvons. Show a little affection for subversion: consider an automated monthly donation. (We accept checks, credit cards, PayPal and cold-hard cash….)
To contribute by phone you can call Becky or Deva toll free at: 1-800-840-3683
Thank you for your support,
Jeffrey, Joshua, Becky, Deva, and Nathaniel
CounterPunch PO Box 228, Petrolia, CA 95558
The Second Andrea Yates Verdict
On Wednesday, July 26, after eleven hours of deliberation, a jury found Andrea Yates–who in 2001 drowned her five children — not guilty by reason of insanity.
This was Yates’s second trial. In March 2002, a Texas jury deliberated only three-and-a-half hours before finding her guilty of capital murder, denying her plea for acquittal based on the insanity defense. The jury showed mercy, however: She could have received the death penalty; instead, she was sentenced to life in prison, without the possibility of parole. On appeal, the conviction was overturned–which resulted in the second trial.
In this article I will explain why Yates’s first conviction was overturned, what was different about the trial this time, and why the second jury’s decision was the right one.
The Stringent Texas Insanity Statute, and the Verdict in the First Trial
The Texas insanity statute makes it well nigh impossible for a defendant to mount a successful insanity defense.
Like many other states, Texas revised its insanity defense statute after John Hinckley was found not guilty by reason of insanity for the 1981 attempted assassination of then- President Ronald Reagan.
The Hinckley verdict enraged many, and fed the common misperception that people acquitted on those grounds "get away with murder." But the reality is that the Hinckley verdict was unusual, for several reasons.
First, the Hinckley verdict was based on an unusual and now-repealed law that required prosecutors in the District of Columbia to prove that Hinckley was sane. Most laws then, as now, required the defendant to prove insanity.
Second, it was unusual that Hinckley asserted the defense in a murder case, and that he prevailed. Contrary to popular belief, less than one percent of people charged with crimes plead insanity and of those, few are charged with murder, and fewer still are acquitted.
Despite the atypical nature of the Hinckley verdict, however, Texas and other states revised their statutes.
A key requirement in criminal law is mens rea: a "guilty mind." But what, exactly, must a defendant know and understand to possess mens rea? Texas and other states reacting to the Hinckley verdict defined mens rea as simply knowing that the act was wrong.
Laws that follow a less stringent standard require generally that defendants prove that as a result of a mental disease or defect, they lacked the capacity either to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law.
In Yates’s case, the prosecutors insisted, and the jury believed, that Yates indeed knew that the killings were "wrong." The evidence: She waited until her husband left the house before drowning the children, and she placed calls to law enforcement after she had killed them.
But this shows the limited nature of the Texas insanity defense, a limitation the Supreme Court recently sanctioned.
In Clark v. Arizona, decided in June 2006, the Supreme Court upheld a statute similar to that under which Yates was first convicted. The decision validated insanity statutes that will not cover even seriously mentally ill people–like Yates–who were psychotic at the time of their crimes. Indeed, in Clark itself, the defendant was not even allowed to introduce evidence of the effect of his psychosis on his crimes. The Court’s decision found no problem with this: The defendant, it held, could be deemed guilty of murder as long as he knew one thing: that he had killed a law enforcement officer. Never mind that the prosecution conceded that Clark was in a schizophrenic, paranoid, delusional state of mind.
In the end, it is not surprising that the jury in the first Yates trial found her guilty under the Texas standard. After all, it was plain that she "knew" she killed her children — because she called and reported their deaths.
Why Was the First Conviction Overturned?
If the Texas insanity statute itself is valid, why was the first Yates conviction overturned on appeal? The answer is that the prosecution presented damaging evidence that turned out to be false–and that could have been key to her conviction.
In the first trial, the prosecution introduced as its expert psychological witness Park Dietz, a "star" mental health expert who usually testifies for the prosecution in famous trials. Dietz concluded that Yates knew what she was doing when she killed her children. He also embellished his testimony with an interesting tidbit that proved not to be true.
Yates had a long history of severe mental illness with delusional episodes. After the birth of her youngest child, six months before the murders, she was diagnosed with postpartum depression. But the prosecution still argued that her assertion of the insanity defense was some kind of ruse. And it enlisted Dietz to help with this argument.
Apparently, Yates was a "Law & Order" fan. Dietz surmised that her murderous plot was hatched after viewing a "Law & Order" episode in which a woman drowned her children in a bathtub and claimed post-partum depression as an insanity defense. The prosecutor hammered away at this point in his closing argument, arguing that Yates had wanted to kill her children because she was overwhelmed by them. This "Law & Order" episode, he argued, planted the seed for murdering her children and blaming it on her postpartum depression.
In fact, there was no such episode–as research by an investigative journalist who wrote for the show revealed.
The false testimony made a solid basis for appeal. Two appellate courts agreed that Dietz’s testimony could have led to the guilty verdict, and ordered a new trial.
What Happened in the Second Trial?
In the second trial, the same mental health testimony — taken from voluminous mental health records — was introduced. It showed Yates to have been severely mentally ill at the time of the crimes. She was living under great stress with five children and her husband in a school bus. Shortly before the murders, she went for mental health treatment and begged to be hospitalized.
After her arrest, Yates told law enforcement and mental health experts that she felt that she was such a bad mother that if she killed the children they would be spared from the evil of living with her. In their innocence, she said, they would have eternal life in heaven.
These facts had not changed. So what made the second trial’s outcome different? There are several possibilities.
When Yates was first charged with the murders, she was found incompetent to be tried (meaning that she was unable to understand the charges and the proceedings, and to assist her attorneys in her defense). She was hospitalized and ordered to take medication so that the trial could go forward. But, as courtroom observers noted, the medication made her appear unfeeling, even zombie-like. And the prosecution used this against her, to suggest she was not even mourning the loss of her children.
At the second trial, not only did she appear more human, but her defense team (the same attorneys from the first trial) introduced more witnesses to help show that she was, in fact, a fragile woman who loved her children, but delusionally believed death was best for them.
In addition, as one of her attorneys noted, the passage of time might have helped Yates. The first trial took place only six months after the killings.
Moreover, the makeup of the jury might have helped this time. The first jury consisted of eight women and four men. The second jury was evenly divided between men and women. It’s possible that women, especially those who’d faced similar challenges as caregivers, might have been especially unsympathetic to Yates.
But also, as in the first trial, the Texas statute favored Yates in a single, but important way (even as it encouraged the jury to ignore her delusions). The statute put the burden on Yates to prove that she was insane at the time of the crimes, but she was only required to do so by a preponderance of the evidence–an evidentiary standard meaning, roughly, proof "more likely than not." So if Yates and her attorneys could tip the scales only slightly in favor of her insanity, the jury could find her not guilty by reason of insanity The prosecution, on the other hand, had to prove guilt beyond a reasonable doubt.
This time, the jury deliberated almost four times longer than it did the first time. Perhaps the first jury was able to move more quickly due to Dietz’s false "Law & Order" claim. And perhaps this time, the second jury rightly focused on Yates’s psychosis–evidence of which strongly militated against her "knowing" that her actions were "wrong."
Amazingly, the prosecution introduced the testimony of Park Dietz again. And the judge forbade the defense from mentioning the falsity Dietz had introduced into the proceedings the first time. (I believe that was an error: Surely, the falsity was relevant to Dietz’s credibility as a witness. It may also have been an error serious enough, if a conviction had ensued, to lead to yet another reversal on appeal.) This time, Dietz admitted that Yates might have been psychotic at the time of the murders, but he still insisted that she knew what she did was wrong.
Until the jurors speak, if they do speak, we won’t know the factors that led to their verdict. What we can say, and anyone who reads Yates’s mental health records will likely agree, is that if ever there was a defendant who deserved the benefit of the insanity defense, it was this sad, sick woman.
Yates Didn’t "Get Away With" Murder, and There Should Be No Third Trial
The Texas prosecutors might not be finished with Yates yet. She was only charged with the murders of three of her five children. This seems to have been a deliberate ploy to give prosecutors a second chance if she was acquitted at the first trial–a ploy that surely violates the spirit, if not the letter, of the Constitution’s Double Jeopardy clause.
Assuming prosecutors do not play that vindictive hand, however, Yates is far from a free woman.
She is sentenced to a maximum-security criminal ward in a state mental hospital, where she is likely to have less freedom than if she were in the women’s prison. The difference, though, is that in the state mental hospital, Yates will have mental health treatment, and the chance to get better. Periodically, she will be examined to see if she is still insane and if she is still dangerous to herself or others.
The law requires that when and if Yates no longer meets either test, she must be released. But in reality, this will not happen anytime soon. John Hinckley, for instance, has been committed now for 25 years. (He only recently won the right to visit his parents in a setting outside of the hospital.)
In sum, Yates’s insanity verdict is, for all practical purposes, a life term in a prison-like setting.
If she ever gets better, and thus gets out, she will probably be an old woman. She will also suffer a punishment that she might not have endured, had she remained in prison, without treatment: She will suffer even more keenly the loss of the children she killed, and of the grandchildren and great-grandchildren she will never hold.
ELAINE CASSEL practices law in Virginia and the District of Columbia and teaches law and psychology. She doesn’t like being lied to. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: firstname.lastname@example.org