The Big Question Is Why

A story that begins and ends with a mother and her children will be resolved in many ways by women. The trial judge in the case, Belinda Hill, already has made several key rulings in the case and will be called upon soon to make more. One of the prosecutors in the case, Kaylynn Williford, was front and center during jury selection and will be so during testimony.

And perhaps most importantly, the jury, which probably will have the ultimate word on Yates' fate, is made up of eight women and four men. Even the three alternate jurors are women.

And eight of the twelve jurors have children, a fact which arguably could influence their determination on whether Yates ought to go to prison, or even be executed, for what she did to her own five children last June.

This isn't a whodunit sort of criminal trial. Everyone knows who did it. Yates did. To all five of her children, drowning them one by one in the bathtub of her Clear Lake, Texas, home before tucking them back into bed with their favorite blankets.

She's actually on trial, however, for two counts of capital murder. The first count charges her with the killing of more than one person - her sons Noah, 7, and John, 5. The second capital murder charge is for the killing of a child under the age of six - her six-month-old daughter, Mary.

Texas law considers a murder a capital offense if more than one person is killed or if the victim is under age 6.

Prosecutors are apparently holding in reserve any future murder charges they may file against Yates in the deaths of her other two children. It's a strategy that also reserves for prosecutors a second chance to build a case against Yates, if, for example, she is not convicted in the current trial.

Since Yates immediately called police to confess to what she did, and since the defense subsequently has not tried to get around that confession, there won't be a whole lot of time spent by prosecutors establishing what happened on June 20, 2001. In fact, it ought to take about a single day or so, if that, for the government to establish that Yates' killed her children. That's when the real trial will begin in this case. After prosecutors show jurors that Yates did the deed, Yates' attorneys will bear the burden of persuading those jurors that she was legally insane at the time.

Under Texas law, the defense must prove by a preponderance of the evidence - that's easier than the reasonable doubt standard - that Yates suffered on June 20, 2001 from a "severe mental disease or defect" and that any such condition precluded her from having the requisite criminal intent necessary for a murder conviction. It won't be enough for the defense to prove that Yates' is "medically" insane; her lawyers also will have to show that any such insanity prevented her at the time from knowing that what she was doing was wrong.

What this really means is that the Yates' trial quickly will become a battle of so-called experts. The defense will argue tat Yates' history of depression which culminated on that horrible day; a history which was known to one and all dating back as far as 1994, when Yates allegedly had her first "vision" involving a knife. Prosecutors will argue that Yates clearly knew right from wrong even at the time, as evidenced by her prompt telephone calls to the cops and her husband to tell them what had happened as well as the timing of the attack - once her husband went to work.

It ought to be a real donnybrook and that's why the jury's makeup is so critical. The fact that there are eight women on the panel tells me that both prosecutors and defense attorneys felt that women would be more sympathetic to their particular case.

Prosecutors probably figured that women would judge Yates more harshly and that mothers in particular wouldn't be willing to cut her much slack since they themselves haven't killed their children. Defense attorneys, meanwhile, hope that women in general and mothers in particular will be more sympathetic to the stress and unrelenting pressure raising children can bring to bear. The fascinating thing about this case is that one side clearly has guessed wrong and we won't know which until the jury comes back with its verdict.

Another x-factor is Yates' husband, Randy, who was so visible shortly after the tragedy and who has continued to publicly support his wife. Despite this support, will the defense point a finger at him to try to convince jurors that he helped create and then maintain an unbearable emotional and physical situation for the defendant? After all, even after Andrea Yates had shown signs of severe depression linked to her role as mother, the couple were back having babies shortly thereafter. There are a few legal observers who believe the defense was willing to allow the jury to be predominantly female in order to focus to a receptive audience upon the sins of Randy Yates. We'll see.

I have no idea how this will end but, all things being equal, it's crucial to remember that the trial is taking place in Texas, until this past year the execution capital of America (Oklahoma eked this title away from Texas in 2001), and in Harris County in particular, which is the capital-murder capital of a capital-murder state.

So Yates faces a tough crowd regardless of what the law and the facts are. One jury candidate who ultimately made it onto the panel said of the death of Yates' children: "I suppose I was angry that it could happen to five innocent children." Another juror, talking in court about the death penalty during the selection process said: "In some cases that is the right thing to do and in others, it's not." And a third told Yates' lawyers: "But I can just grant you I'll cry. There's no doubt in my mind about that."

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