Friends, family set to testify in effort to head off execution

03/14/2002

Terri Langford, The Dallas Morning News

HOUSTON - Lawyers for Andrea Yates begin fighting for her survival Thursday, hoping to persuade jurors to sentence their client to life imprisonment rather than mete out the death penalty for killing her children.

AP A Houston jury convicted Andrea Yates Tuesday of two counts of capital murder.

They are expected to hear from witnesses - friends, family and mental health experts - who will say Mrs. Yates should receive life in prison instead of execution.

Prosecutors are not expected to present any witnesses, according to the Harris County court administrator's office. That would mean they may be relying instead on the evidence presented during the guilt-innocence phase of the trial.

Lawyers on both sides have been ordered not to comment on the case.

Legal experts read the prosecution's strategy variously.

Rusty Hardin, a criminal defense attorney and former prosecutor, said he thought the prosecution didn't need more witnesses.

"I think it means that they're going to ask the jury to make up their minds on the facts of the case," Mr. Hardin said.

Criminal defense attorney Dick DeGuerin agreed.

"Frequently in capital murder cases, the prosecution does not put on witnesses; [they] simply argue that the facts of the case justify the death penalty," he said.

"They don't have any [witnesses], that's what I think," said Neil McCabe, a law professor at Houston's South Texas College of Law. "They don't have anybody who will say she'll be dangerous in the future. And that's what they have to prove. They just don't have it."

In a swift decision, a jury of eight women and four men on Tuesday convicted Mrs. Yates in the June 20 drowning deaths of three of her five children: Noah, 7, John, 5, and Mary, 6 months. They reached their verdict in less than four hours after listening to three weeks of testimony.

AP Much of the trial centered on whether Andrea Yates was mentally ill and if she understood that drowning her children was wrong.

In a capital murder trial, there are two phases. The first is to decide guilt. The second, to decide punishment.

Any evidence that the judge deems relevant is admissible in the punishment phase. All the evidence heard to determine guilt will be considered by the jurors as well any new evidence presented by either side, Mr. McCabe said.

Both sides will offer closing arguments, and then the 12 jurors must decide two things: They must determine whether Mrs. Yates presents a continued threat to society. If they answer "yes," they must do so unanimously, Mr. McCabe said. If they answer "no," 10 or more jurors must agree.

If the answer is yes, jurors proceed to the second issue, whether circumstances of the defendant's background and character or the offense itself warrant a life sentence rather than death.

If the answer on this issue is no, a death sentence will be recommended. If the answer is yes, Mrs. Yates will receive a life sentence.

In Texas, juries do not sentence a defendant to death. They make a recommendation based on these two questions, and the judge pronounces the sentence.

"If the defense requests, the judge tells the jury that, should it find that mitigating circumstances warrant a life sentence, Yates will not be eligible for parole for 40 years," Mr. McCabe said.

Life sentences in Texas mean a defendant faces at least 40 years of incarceration.

If the jury fails to agree on an issue, a mistrial on the punishment phase would result.

A new trial before a separate jury on the punishment issue only would be ordered. The jury is not told of the effect of its failure to agree.