Taking The Time To Do It Right

This is a jury selection where the trial consultants, the people who make a living telling lawyers which jury candidates to keep and which to try to keep off the panel, are surely going to earn their typically big paychecks. More than most of the high-profile trials we've witnessed over the past few years, the tale of State v. Yates will largely be told by which jurors make it onto the panel.

Why are the stakes so high even before the first witness takes the stand?

Because this isn't a whodunnit. We know who did it. Andrea Yates, a suburban mother of five already has apparently confessed to killing all of her children by drowning them one by one in the bathtub of their Houston home. Even the defense doesn't appear likely to challenge that confession. What we don't know, and what the jurors will be asked to answer, then, is why Yates did it - whether she was legally insane at the time and, if not, whether she ought to pay for her actions with her own life.

Those central questions are gut-wrenching, emotional ones which will force jurors to corral not just their sensibilities but their life experiences as well. Sure, they'll be guided by legal principles in general and the rules of the insanity defense in Texas in particular.

But the facts of this particular case - the horror of the crime combined with the defendant's relationship to the victims - will allow and require jurors to act as the "moral conscience of the community" perhaps even more than they normally would in a murder case. Jurors will have a little more room to roam in this case, I think, and why it is absolutely critical during jury selection for each side to fight as hard as possible to shape the jury the best they can.

So as selection begins, both prosecutors and Yates' attorneys have to be scratching their heads about what types of jurors they want to hear the case.

Do prosecutors want mothers, fathers or family-oriented jurors on the premise that any such juror is likely to have raised children without doing them anywhere near the sort of harm that Yates did to her children? Or does the defense want a mother or two in that jury box on the premise that only a mother can truly appreciate how difficult it would be to raise five children without much help from the outside world?

What about people with any history of mental illness - will such candidate automatically be rejected by the judge or by either or both of the parties? What about babysitters or other jury candidates who have taken care of children in the past? In or out? And which side would want them in or out?

It's hard in our society - or any society when you think about it - to find a group of people who don't have firmly-held beliefs about children and parents and the relationship between the two - a relationship which of course is central to the Yates case both for prosecutors and the defense.

And what in the world can either side do about the torrent of pre-trial publicity abou the case, coverage which was virtually wall-to-wall last summer long before the September terror attacks? Unlike some complex conspiracy case or some under-the-radar drug sting, virtually everyone has heard about what happened to Yates' children and virtually everyone has an opinion about it. Familiarity breeds, well, familiarity.

To her eternal credit, District Judge Belinda Hill has recognized that this isn't a run-of-the-mill murder trial, even in Harris County, which has an international reputation for being the type of jurisdiction where jurors are all too quick to recommend the death penalty. In order to help weed out those potential jurors who already have made up their minds about Yates, or who wouldn't be able to make up their minds for any number of reasons, Hill is going to take jury candidates one-by-one through the voir dire process.

That means that jury selection is likely to take between four to six weeks, an eternity in most state-court murder trials but not an unreasonable amount of time here if you ask me.

Anything short of the specific, involved questioning contemplated by Judge Hill's order would prevent Yates from getting the fair trial to which she is entitled under the Constitution. And it is going to be a fascinating month or so, as Texas juror after Texas juror tells the court and the world what he or she thinks of law and justice and children and mental illness and, yes, to a certain degree, Andrea Yates.

By Andrew Cohen © MMII, CBS Worldwide Inc. All Rights Reserved