Death May Not Be Prosecution's Aim

In his commentary, CBSNews.com Legal Consultant Andrew Cohen says the prosecutors' moves in the courtroom suggest a reluctance to push for the death penalty for Andrea Yates, already convicted of drowning her children.

That, in turn, enabled the state to pepper the jury with law-and-order, tough-on-crime types. Then, after a state case that portrayed the mentally ill defendant to be an evil, cunning, deliberate murderer, those same jurors convicted Yates in less than four hours.

Now that they've gotten Yates convicted of two capital murder charges, however, the prosecutors have turned into pussycats. Instead of continuing their aggressive pursuit of "justice" and "deterrence," they signaled jurors through a morning of virtual inactivity during the punishment phase of the trial that life instead of death wouldn't be the worst decision these jurors have ever made in their lives.

After weeks of trial combat in which prosecutor Joe Owmby positively thundered at witnesses and jurors alike, he was passive, even chatty, with a parade of defense witnesses who tried to plead for Yates' life. The state asked only a few questions all session long.

What gives? How come the State suddenly seems to have lost the courage of its convictions, pun intended? Did prosecutors became convinced during the lengthy trial that the defendant's mental illness is an important mitigating factor which ought to spare her life? Do they figure it's best to quit while they're ahead and not appear to be piling on after such a swift and decisive verdict? Do they realize that it would be folly and a waste of everyone's time to argue that Yates is a future danger to society? Or perhaps this wasn't really a death penalty case to begin with and prosecutors made it so in order to stack the deck during jury selection.

This is not an unusual tactic by prosecutors and it certainly isn't always a nefarious one. They "overcharge" defendants all the time in any manner of cases, mostly to ensure that the plea deals that often follow are more favorable to the government.

Sometimes judges interrupt the plan. Sometimes jurors interfere with a defense verdict. And sometimes prosecutors get everything they ask for. The John Walker Lindh case is a perfect contemporary example of a case in which prosecutors have overcharged the defendant in the hope of ensuring that something, anything sticks after trial. But the death penalty isn't on the table for the so-called American Taliban.

And that 's what makes the typical overcharge scenario different from the one we have seen in the Andrea Yates case. When you go for the death penalty as a prosecutor, you aren't just giving the jury one more sentencing option. You are altering the makeup of the jury itself. You are ensuring that not a single juror who sits on the panel hasn't already contemplated and come to grips with the notion of voting to execute someone.

This isn't simply a Texas issue, either. All over the country and under federal law jurors must be "death-qualified" in this manner. It gives an enormous advantage to prosecutors in capital cases even before the first shred of evidence has been introduced.

I'm not faulting prosecutors here or anywhere else for complying with the law as its been defined by judges and legislatures. So long as the death penalty is an option in cases, prosecutors must be free to consider it and seek it in the appropriate circumstances. What troubles me about Thursday's performance by the state, however, is that it smacks of an unfair bait-and-switch.

Either Yates deserves death or she doesn't and prosecutors knew months and months ago what the evidence would be at trial. They long ago could have come to the conclusion they seem to have come to late this week -- that it would be unseemly if not illegal for a woman as sick as Andrea Yates is to be condemned to death. They long ago could have taken death off the table as an option. They long ago could have evened out the playing field for jury selection.

Would it have made a difference? That's impossible to say. Perhaps even a jury that didn't have to be "death qualified" would have concluded that Yates was legally sane when she drowned her children in the bathtub of their home. But I bet it would have taken them more than the three hours or so it took Yates' actual jury to return its verdict on Tuesday.

It might even have made a difference in the way all of the medical and psychiatric testimony was received during the course of the trial. But we'll never know and, believe me, the state is delighted that we'll never know.

In any event, prosecutors will have a final chance Friday to tell jurors what they really think about what ought to happen to Yates. Perhaps at that time they'll reiterate their desire for the death penalty and tell jurors that they already have all the facts they need to recommend it. Or perhaps they'll continue to back off and send a more ambiguous signal to jurors that the State no longer cares one way or another whether Yates lives or dies.

In the end, it may not matter. In the end, the state may not be able to put the horse back in the barn. In the end, even if prosecutors themselves beg for Yates' life, this jury may no longer be in a mood to listen.