The Defense Rests -- Comfortably

Actress Angelina Jolie participates in a panel discussion during the Clinton Global Initiative Annual Meeting Wednesday, Sept. 26, 2007 in New York.
The defense has rested in the trial of Andrea Yates. How'd they do? Legal Analyst Andrew Cohen provides his analysis.
Andrea Yates still may be convicted and sentenced to death for drowning her five children last June 20th. In spite of her presumption of innocence, the deck of criminal justice still is stacked very much against her. Her trial judge is a former prosecutor and often shows it on the bench.

Harris County, Texas, where the trial is being held, has an international reputation for condemning people to death. And the State hasn't exhibited a lick of mercy, even though prosecutors have been forced to concede that she is mentally ill.

But if Yates is convicted, it won't be -- as seems to be the case in Texas more than anywhere else -- because her defense wasn't solid and thorough and based upon more than just a hunch about legal insanity.

Indeed, aside from a few specific questions here and there, a few missed opportunities to object to a question by prosecutors and a lack of pacing now and then, there probably isn't much Yates' attorneys are regretting about the picture of their client they have presented to jurors over the past week or so.

They have given it their proverbial best shot and soon the jury will tell them if it was enough.

The insanity defense presented on behalf of Andrea Yates benefited greatly, overwhelmingly, from the material medical experts had to deal with. That material, of course, was Yates herself, who was so clearly and severely ill last spring and summer that to suggest otherwise seems, well, insane itself.

In other words, you don't need to be a psychiatrist to have come to the conclusion that Yates was monumentally disturbed during her jailhouse interview with Dr. Melissa Ferguson, taken just days after the killings. And you don't need to be an expert in child killings to see that Yates wasn't a whole lot better when she was interviewed five weeks later -- and many doses of anti-psychotic medication later -- by women's mental health expert Dr. Lucy Puryear.

After hearing so many psychiatrists who have had so much access to Yates agree on such fundamental conclusions about her mental state last June -- she was psychotic, she was delusional, she was suffering from post-partum depression and psychosis, she had frontal lobe impairment -- it's hard to imagine that a single juror has any doubt about how sick Yates was when, the defense doctors say, she killed her children in order to save them from eternal damnation.

The defense has set up the equation so that jurors have to essentially disbelieve all or most of these experts in order to conclude that Yates isn't legally insane.

Which doesn't mean it won't happen. Already the State is signaling jurors that psychology is just a load of hooey and that it is entirely possible, indeed, reasonable, to assume that any psychiatrist who thinks Yates didn't know right from wrong last June 20th is simply reading too much into diffuse data gleaned from medical reports. And the State is quick to remind jurors that Yates could have been the most mentally ill person in the history of the world last June 20th but still could be considered "legally sane" so long as she knew the difference between right and wrong at the time. Texas law doesn't make it easy for defendants to prevail in insanity cases.

Still, this hasn't been your run-of-the-mill insanity case. The doctors who have testified haven't characterized Yates' illness as borderline or a close call, something that could go one way or the other. The words they have used to describe Yates, and the certainty with which they have offered those conclusions, and the credentials they have brought to the stand, have prosecutors worried. So worried, in fact, that lead prosecutor Joe Owmby himself pulled a shameless old stunt Wednesday just before the defense rested.

During his cross-examination of Dr. Puryear, which wasn't really going anywhere for the State, Owmby re-played for jurors (they had heard it first two weeks ago during the State's case-in-chief) an audiotape of Yates' confession to a Houston cop just hours after the drownings.

He said he was re-playing the tape because he wanted to ask the expert some question about Yates' responses but when the 20-minute tape was done, when the jurors were again made to hear Yates describe how and in what order she drowned her children, all Owmby managed to ask the doctor was a single question. And it was in regard to Yates' answer to the cop's question on the audiotape about whether Yates wanted the criminal justice system to punish her.

The re-playing of the tape -- an enormously pejorative piece of evidence and one which didn't tell the doctor anything she didn't already know -- was one of the most gratuitous things I've seen in court in a long time and it's astonishing that Judge Belinda Hill allowed it to occur. But it told me that the State is much more worried about the defense case than it probably was before the insanity evidence started to come in.

When lawyers resort to stunts in court you know they are doing it because they feel they have to -- not because they have decided they want to. Owmby must have felt that the only way to get the jury's mind off Dr. Puryear's solid testimony was to focus their attention again on what happened that awful day last June. Only "what happened" is no longer in contention or even relevant and hasn't been for weeks.

Now it's the prosecution's turn. Their medical experts will trot up to the same witness stand, swear the same oath, look at essentially the same medical records, review many of the same videotapes, and then come to completely different conclusions than the ones offered by defense experts. After the defense decided not to contest Yates' confession, this case always was going to be a battle of experts.

The battle is about to be joined.