Yates Trial Down To The Bitter End

Defense attorneys George Parnham, left, and Wendell Odom confer outside the Harris County courthouse in Houston. Yates trial
Testimony concluded in the Andrea Yates murder trial, now closing arguments are all that remain before the jury gets the case. While the jurors will have to listen to them, CBSNews.com Legal Consultant Andrew Cohen thinks they could probably do without the closings.
Was she mad when she killed the children or did killing the children make her mad?

When you strip away the legal standards and all the medical gobbledygook, that question is essentially what the Andrea Yates' capital murder trial comes down to now that it has come down to closing arguments.

The case is striking for countless reasons, not the least of which is that the best evidence for prosecutors -- how Yates drowned her children -- is also the best evidence for the defense. How could Yates drown her children?

But it's also unusual because so many of the facts of the case, so much of what lawyers usually fight about in a trial that has gone on as long as this one has, aren't really in dispute. And not all of the facts and issues that were in dispute before trial are in dispute any longer. Sometimes trials generate questions; this one, for the most part, has answered them.

Both sides agree that Yates killed the children and in what fashion and order. Both sides agree that Yates meant to kill them; that it was a purposeful act. Both sides agree that Yates had not discussed killing her children before last June 20th. Both sides agree that Yates waited until her husband had left the house that morning before she drew the bath water and that she systematically completed the killings before her mother-in-law was scheduled to arrive. Both sides agree that Yates knew it was legally wrong to kill the children.

But both sides also agree that Yates was not on any anti-psychotic medication in the weeks before the killings. Both sides agree that Yates was a good and loving mother until that day. Both sides agree that Yates was, at a minimum, schizophrenic. In fact, both sides agree that Yates was "severely" mentally ill both before the killings and after them. Both sides even agree that Yates was psychotic both before and after the drownings (they only disagree on how psychotic). And both sides even seem to agree that Yates thought that it was in the best interests of the children to kill them in order to send them to heaven.

The only legal question that will force jurors to make a choice between the two versions presented by each set of witnesses, each set of lawyers, is the element in Texas' insanity law which requires the defense to prove by a preponderance of the evidence that the defendant did not know that her conduct was wrong at the time she committed the act. Once jurors answer that question among themselves, they'll have their verdict. If they say that Yates subjectively knew what she was doing last June 20th was wrong they'll convict her. If they say she did not know what she was doing that day was wrong, Yates will likely be acquitted by reason of insanity. That means she'll go to a mental hospital instead of to prison or to the death house.

And to answer that legal question, the Yates jury will have to answer first for themselves the question of how sick she really was on that awful day.

Prosecutors say she became grossly psychotic only after the children were killed and she was placed into the Texas justice system. The defense says that anyone who was as grossly psychotic as Yates was the next day, on June 21st when she was interviewed in jail, couldn't have been much less so the day before.

I suspect a great deal of the closing arguments Tuesday will focus upon that mental-health timeline. These lawyers know precisely what is at the heart of this case -- and they know that the jurors know it, too. And so the attorneys will zero in on it during their final 90 minutes or so in front of the jury box.

Each side, I suspect, will contend that their version of what Yates was thinking is more rational than the other side's version. Each side will point to expert medical testimony to bolster that view. Indeed, the extent to which the case was dominated by medical testimony actually will make it difficult for the lawyers to frame their closings in a way that tries to get past the psychiatry and the fancy words and abstract concepts. It's tough to mold an argument or create a theme when the parameters are so set in stone, as they clearly are in this case, bound by the laws of medicine and the opinions offered "to a reasonable degree of medical certainty."

Prosecutor Joe Owmby discovered that the hard way on Monday when he tried during a cross-examination to compare Yates with Osama bin Laden and didn't get very far.

Sometimes, closing arguments are a crucial part of a trial; a moment when bright attorneys weave together the story of the case in a way that helps jurors comprehend what it's all about.

I don't sense that being the case here at all. I think these jurors are ready right now -- before closings -- to grab this case away from the judge and the lawyers and to run with it. I think the jurors are sick of hearing from the lawyers and ready to tackle what they heard from the experts in a case, really, where what the experts had to say always was more important than what the attorneys had to say anyway.