Yates Sentence Overturned

Law

Yesterday, the 1st Court of Appeals in Houston released its opinion in Texas v. Yates. Unless you have been living under a rock for the last couple of years you know the factual background here. Believe it or not, those facts are completely immaterial to the decision handed down. The case at the appeallate level centered around an untruth told by the State’s expert witness, Dr. Park Dietz.

Dr. Dietz, from what I have seen of the record, did an admirable job on the stand. He gave his opinion, then backed it up with rational reasons. However, under cross-examination by Ms. Yates’ attorneys, this exchange happened:

Q. Now, you are, are you not, a consultant on the television program known as “Law & Order”?

A. Two of them.

Q. Okay. Did either one of those deal with postpartum depression or women’s mental health?

A. As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane and it was aired shortly before the crime occurred.

The problem is that there was no such episode. The error wasn’t caught until after the end of the guilt/innocense phase of the capital murder trial. The jurors were not told of the error until they were set to begin deliberations in the penalty phase.

But, it’s not that damning of a problem is it? Normally, no, it wouldn’t be. However, the 1st Court of Appeals places the problem within its larger context within the trial:

Dr. Park Dietz, who interviewed appellant and was the State’s sole mental-health expert in the case, testified that appellant, although psychotic on June 20, knew that what she did was wrong. Dr. Dietz reasoned that because appellant indicated that her thoughts were coming from Satan, she must have known they were wrong; that if she believed she was saving the children, she would have shared her plan with others rather than hide it as she did; that if she really believed that Satan was going to harm the children, she would have called the police or a pastor or would have sent the children away; and that she covered the bodies out of guilt or shame.

On cross-examination, appellant’s counsel asked Dr. Dietz about his consulting work with the television show, “Law & Order,” which appellant was known to watch. The testimony was as follows:

Q. Now, you are, are you not, a consultant on the television program known as “Law & Order”?

A. Two of them.

Q. Okay. Did either one of those deal with postpartum depression or women’s mental health?

A. As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane and it was aired shortly before the crime occurred.

The second mention of “Law & Order” came during Dr. Lucy Puryear’s testimony. Dr. Puryear, a defense expert witness, was cross-examined by the State regarding her evaluation of appellant. The State specifically asked about her failure to inquire into whether or not appellant had seen “Law & Order.” Dr. Puryear testified as follows:

Q. You know she watched “Law & Order” a lot; right?

A. I didn’t know. No.

Q. Did you know that in the weeks before June 20th, there was a “Law & Order” episode where a woman killed her children by drowning them in a bathtub, was defended on the basis of whether she was sane or insane under the law, and the diagnosis was postpartum depression and in the program the person was found insane, not guilty by reason of insanity? Did you know that?

A. No.

Q. If you had known that and had known that Andrea Yates was subject to these delusions, not that she was the subject of a delusion of reference, but that she regularly watched “Law & Order” and may have seen that episode, would you have changed the way you went about interviewing her, would you have interviewed whether she got the idea somehow she could do this and not suffer hell or prison?

A. I certainly wouldn’t have asked her that question. No.

Q. Would you have - - you didn’t have to ask her that question, but you could have explored that?

A. If I had known she watched that show, I would have ask[ed] her about it, yes.

In his final argument at the guilt-innocence phase of the trial, appellant’s attorney referred to Dr. Dietz’s testimony by stating, “Or maybe even we heard some evidence that she saw some show on TV and knew she could drown her children and get away with it.”

The prosecutor, in his final argument, made the following reference to Dietz’s testimony about the “Law & Order” episode:

She gets very depressed and goes into Devereux. And at times she says these thoughts came to her during that month. These thoughts came to her, and she watches “Law & Order” regularly, she sees this program. There is a way out. She tells that to Dr. Dietz. A way out.

Notice then that the prosecuting attorney turned this into further evidence to use in order to convict. So powerful and persuasive was this newly found piece of evidence that the prosecutor mentions it not only in his cross-examination of the Ms. Yates’ expert witness, but again in his summation: “…she watches ‘Law & Order’ regularly, she sees this program. There is a way out. She tells that to Dr. Dietz. A way out.”

The clear implication here is that Andrea Yates saw an episode of Law & Order (which was never actually filmed) and schemed to bring what she saw on the screen to life. It was “a way out.”

Now that you’ve seen that, notice where the panel goes in its decision:

The State recognizes that the State’s knowing use of perjured testimony that is likely to materially affect the judgment violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See Ex parte Castellano, 863 S.W.2d 476, 485 (Tex. Crim. App. 1993). The State argues that it did not know that the testimony was false, did not use the false information, and the information was not material. We agree that this case does not involve the State’s knowing use of perjured testimony. At the hearing on appellant’s motion for mistrial, appellant did not complain that there had been prosecutorial misconduct. Rather, appellant stated,

[M]ake no mistake, the issue is not whether or not the State was aware and we have no reason to believe the State was aware that such a program did not exist. The issue is that the defense of insanity was rebutted by the testimony of Dr. Dietz relative to an act of premeditation, that is a planned and/or a deceptive act on Mrs. Yates’ part, that is something that would give her an idea, a way out of these particular allegations. And that was relayed to this jury and we believe that the jury relied upon the presentation of Dr. Dietz as well as the cross-examination by [the State's attorney] of Dr. Puryear relative to this particular issue.

Thus, the defense, correctly, states that the State did, in fact, actually use the material. This is obvious from the snippets of the record shown in the first quote above. They used the material not once, but twice.

However, the State asserts that it is “very questionable whether it can be said that the trial prosecutors used Dr. Dietz’ testimony on cross-examination, especially in light of the fact that it played absolutely no role in the development of Dr. Dietz’ conclusion that the appellant knew that her conduct was wrong . . . .”

The record reflects that the State used Dr. Dietz’s testimony twice. First, the State used the testimony to cross-examine Dr. Puryear, who had seen appellant for several months while appellant was in the county jail, asking Dr. Puryear whether she knew that appellant watched “Law & Order” and whether she knew that there was an episode with a plot line mirroring appellant’s acts. In so doing, the State repeated those facts that were common to appellant’s acts and the referenced episode, thus emphasizing those facts already stated by Dr. Dietz. Second, the State connected the dots in its final argument by juxtaposing appellant’s depression, her dark thoughts, watching “Law & Order,” and seeing “a way out.” Thus, the State used Dr. Dietz’s false testimony to suggest to the jury that appellant patterned her actions after that “Law & Order” episode. We emphasize that the State’s use of Dr. Dietz’s false testimony was not prosecutorial misconduct. Rather, it served to give weight to that testimony.

The State argues that Dr. Dietz’s testimony regarding the “Law & Order” episode was not material. The State asserts that “there is no reasonable likelihood” that the testimony “could have affected the judgment of the jury,” but does not make any argument to support such a conclusory statement. We conclude that the testimony, combined with the State’s cross-examination of Dr. Puryear and closing argument, was material. The materiality of the testimony is further evidenced by the fact that appellant’s attorney felt compelled to address it in his own closing argument.

The State also asserts that Dr. Dietz did not suggest that appellant used the plot of the show to plan killing her children. Although it is true that Dr. Dietz did not make such a suggestion, the State did in its closing argument.

To that I would add that after discovering Dr. Dietz’ error, it took the jury a mere 35 minutes to return a recommendation of life in prison instead of death by lethal injection. It would appear to me that the Law & Order argument was so persuasive that when it was pulled out from under the State that the jury quickly went to be as lenient as it could.

People (especially my brethern on the right) are talking about her getting off on a technicality. The fact is, though, that those technicalities are our rights. The Due Process Clause of the 14th Amendment is no more a technical right than the rights afforded us under the 1st, 2nd, or 6th Amendments.

If ever there was a case which needed a new trial in order to reach a proper verdict, it’s probably this one.

MickC @ January 7, 2005