Heavy Weight On Jury's Shoulders

In his commentary, CBSNews.com Legal Consultant Andrew Cohen offers a few observations on whether the jury's actions to date have provided a hint on what it will do in its next decision: a life or death verdict for convicted child killer Andrea Yates.

Have the jurors already decided that Yates deserves the needle for drowning her five children in the bathtub of their home? After all, now that they have found her guilty of such a heinous crime, it isn't that much of a logical leap to think that they'll want to impose the ultimate punishment regardless of her mental illness.

If the fact that she was psychotic last June 20th didn't factor into the jury's deliberations during the guilt/innocence phase of the case, it may not necessarily factor into the sentencing phase, either.

Or have jurors already cut their own deal among themselves in which the quid pro quo is a quick guilty verdict in exchange for a quick life sentence? I suppose it is possible that when the jurors finally got around to deliberating Tuesday one of the first things anyone said was: "We all know she's guilty. The question is what are we going to do with her?"

Perhaps the fact that all the experts in the case - doctors for both the defense and the State - agreed that Yates was "severely mentally ill" and "psychotic" that day will finally resonate with jurors when they contemplate how they will feel if they condemn a woman that sick to death.

It could go either way, although I suspect that prosecutors are feeling a lot better about their chances of getting death here than Yates' lawyers are feeling about sparing her life.

It's hard not to see Tuesday's quick verdict as a complete repudiation of nearly everything the defense tried to accomplish during its lengthy presentation. And it's not hard to see the verdict as a complete vindication of the State's "Keep it simple, stupid" strategy at trial. Sometimes, a sandwich is just a sandwich and this may be one of those times when the jury's clear message Tuesday means it will send an equally clear message the next time it votes.

So what will prosecutors do? What should they do? Not much, I suspect. They don't have much material to work with. The mother of the victims is also their murderer so they'll be no heart-wrenching victim-impact testimony from that end.

The father of the victims, Russell Yates, supports the mother and positively detests the people who are trying to kill her, so I don't suspect that he'll be running up to the stand to talk about how "justice" dictates that the killer of his children be put to death. No "eye for an eye" stuff from this family, and for obvious reasons.

It's possible that prosecutors will bring back an expert or two to talk about how Yates still could be a possible future threat to the community, although it's hard to even type that position with a straight face.

Leaving alone the notion that Yates will be locked away and heavily medicated the rest of her life if she isn't executed, it's hard to see how anyone could say that she ever could pose a threat to anyone ever again. But this is one case where it pays to never say never.

So what will the defense do? What should they do? Again, not much. They've already presented the bulk of what would normally be presented during the sentencing phase of the case and if jurors don't "get" the notion of mental illness and its effect on Yates by now it's hard to see how they will in the future.

Surely now Yates' attorneys understand that this jury is not receptive to clinical information from doctors or charts. And it would probably be self-defeating for the defense to bring back any of the same experts whose reasoned, measured and expensive opinions were so quickly dismissed and ejected on Tuesday by these very same jurors.

It's possible, even likely, that Russell Yates will have something to say in court about his wife and why she should not be put to death. But even he doesn't come without complications for the defense. He's not a blank slate in this case; not a pure victim although he surely has lost more than what most could bear.

He was criticized at times by both prosecution and defense witnesses during the trial and during closing arguments the winners so far, the prosecutors, implied that he was to blame for putting Andrea Yates in a brutally difficult position in the years and months before the killings. The jury's verdict Tuesday may not have been an indictment of Russell Yates but it surely wasn't a pat on the back, either.

The sentencing phase shouldn't take very long. Prosecutors hold the cards and they'll want to quit while they are ahead. Yates' lawyers won't want to belabor their points, figuring there is nothing their witnesses can say now that hasn't already been said. And we know from their recent past that these jurors aren't much for dawdling.

By Andrew Cohen