Murder, She Wrote

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

There is no doubt that Harris hated her husband, David, when she confronted him and his mistress last July in the parking lot of a hotel. There is no doubt that she had spent a great deal of time before the confrontation looking for David; looking to catch him in the act.

There is no doubt that Harris ran him over with her luxury car, again and again, in front of his daughter who was riding with Clara Harris in the front seat of her Mercedes. And there is no doubt that she then ran up to David as he lay dying, took one of his shattered teeth out of his mouth, and said: this is what you made me do. For these acts, a Houston jury rightfully rejected the defense's "accident" theory and convicted Harris of murder. It took jurors eight hours to reach their verdict.

There also is no doubt that Yates loved her five children even after she killed them, one by one, in June 2001. There is no doubt that she was severely mentally ill at the time of the killings -- even the prosecutors' expert witnesses so testisfied. There is no doubt that Yates believed at the time that the only way she could protect her children from the Devil -- inside her, she believed -- was to send them to heaven as soon as possible.

After drowning her children, Yates didn't mock them or taunt them like Harris did to her husband. She tucked them into her bed. For these acts, a Houston jury coldly rejected the insanity defense and convicted Yates of murder. It took these jurors just four hours to reach their verdict.

Because it involved multiple killings and because Yates' victims were children, her case was a death penalty case. Because Harris merely killed an adult, and because she only ran over one man until he was dead, prosecutors did not seek the death penalty against her. Yates' jury showed a modicum of compassion by recommending a life sentence for her instead of the death penalty (although you easily could argue that Yates might be better off dead. If she ever regains her sanity, she surely will go mad again when she realizes what she did). Harris' jury now is considering how much sympathy she deserves.

Because it is not a death penalty case, Harris faces a maximum sentence of life in prison with possible parole after approximately 40 years. But the quirks of Texas law permit jurors, if they so choose, to give Harris as light a sentence as five years of probation if they believe she acted with "sudden passion" at the time of the killing.

Knowing they had little chance to gain an acquittal, the notion of "sudden passion" -- catching your cheatin' spouse in the arms of another is a textbook example -- is what the Harris defense has focused upon since the start of the trial. Why not? If jurors are willing to cut Harris a break, she could theoretically walk out of court a "free" woman with a promise to not run over anyone else for at least five years.

The defense strategy of conceding the battle -- the trial -- but winning the war -- sentencing -- is why jurors were subjected to so much testimony and so much talk from the defense about how humiliated Clara Harris was over her husband's infidelity; how badly he treated her; and how badly she sought to compete against her husband's lover for his attention. It's why defense attorneys sought so mightily to connect with the nine female jurors on the panel, hoping that if they didn't actually approve of what Clara Harris did they at least would be willing to understand it.

Usually defense attorneys are loathe to criticize murder victims. It's not nice to speak ill of the dead, first of all, and it usually makes jurors furious with the defendant, not the prosecutor. But clearly Harris' attorneys want jurors to think about how they might feel if they were married to such a cad; to a man who actually jotted down on a cocktail napkin for his wife the very practical comparisons to her and his lover. Is this blame-the-victim strategy working? I don't know.

Yates' jurors cried when they were shown pictures of her murdered children. Some of Harris' jurors cried when Harris herself broke down on the witness stand during testifying. If there are more tears during penalty deliberations, Harris might actually get the break she's looking for.

If that happens, it will be an absolute travesty upon justice. It will suggest that the lifestyle and choices of the victim ought to dictate what happens to his or her murderer. Or that a severe mental illness is less of a justification for murder than is a vengeful or jealous heart. Or even that the life and future of a loving mother who breaks down in a horrific moment of sheer insanity is worth less than the life and future of a professional spouse who was so heartbroken over what she had done that she asked the private investigator she had hired to tail her husband for a refund because she killed him before the PI's work had been done.

Look, I sat through the Yates trial and am convinced beyond all doubt that she was medically and legally insane at the time she killed her children. But if Yates is required to sit in prison and suffer without proper medical treatment for the rest of her life I don't see how another Houston jury can come back and say that Harris deserves a slap on the wrist for her crime. People say Texas justice is swift and severe. We'll soon see if it is swift and severe and equally dispensed in the case of Texas's two most infamous women of the 21st Century.

By Andrew Cohen