Winning The Battle, Losing The War

CBSNews.com Legal Consultant Andrew Cohen says much of the evidence prosecutors claim shows Andrea Yates had evil intent also helps prove her insanity. But the Texas insanity statute may be too much for the defense to overcome.

The trap the State has found itself in throughout this whole trial was laid bare during the heated summations by prosecutors. So much of what prosecutors say is evidence of Yates' evil intent strikes me as far more powerful evidence of her insanity. And so much of what the State says about the children, and how sad it is that they won't have a future, strikes me as a reminder that Yates may be the murderer but she's also the mother of the victims. We are used to hearing the names of the victims read aloud in court. But when Andrea Yates heard the names read aloud by the judge during jury instructions they were the names of her children, too. It's bizarre. Unnatural. And it cannot help the State.

It also cannot help the State that prosecutors still have not and cannot answer why the acts alone aren't the best evidence of Yates' insanity. Instead, they offer the explanation - not entirely supported by great evidence - that Yates got the idea for the drownings from a television show and then implemented her plan in order to "find a way out" of her suffocating marriage or at least to rid herself of the best reminder that she wasn't a good parent. Never mind how psychotic and irrational Yates' belief about her relationship with her children was, the State says it was her motive to kill. This from the side that didn't want to trash Yates' husband too much during the trial itself or make this a case about the couple's religious beliefs. It doesn't fit but you can't acquit.

So much of the prosecution's case doesn't seem to fit the lay testimony or the medical evidence. Every time Kaylynn Williford talked to jurors about the determination it must have taken Yates to kill those children that day, that determination struck me as insanity. Williford asked the jury, for example, to take three minutes of silence during their deliberations to contemplate how long Yates had to hold each of her children under water for each of them to be rendered unconscious. If the jurors do that, it seems to me, it'll dawn on them quite clearly just how frenzied and difficult it must have been for the defendant that day, and I'm not sure how that proves evilness over insanity. Isn't it more logical to assume that a rational mother would make a half-hearted effort to kill her children, or let up on their little heads and legs after a brief period of time? I think of those three minutes and I think of pure madness. Could the jury think otherwise?

Williford also talked to jurors about Yates' deception that day - about how Yates had covered the bodies of each child as she killed them. But if deception and organization were the hallmark in the house that morning why didn't Yates kill her oldest child, Noah, first instead of last? The one child who comprehended what was happening was the one who had the best chance. And even then Yates did not hide the body of Mary from Noah when he walked into the bathroom for a final time. That doesn't signal deception to me; it signals random poor luck for each of the children.

The prosecutor then told jurors that Yates offered "no loving acts on that day." No kidding. But why does that help prove she was sane? If nothing else, it shows that her conduct that day was out of character with her typical conduct. And the same goes for Williford talking to jurors about how valiantly the children struggled or about how Yates referred to Noah as "it" as his body lay face down in the vomitous water of the bathtub. I just don't see how those uncontested facts show Yates to be more sane than less sane.

And the same goes for many of the arguments made by lead prosecutor Joe Owmby, who pretended not to know the difference between a delusion, which Yates suffered from, and a bad idea, which he kept coming back to with analogies that simply don't fit this case. On Monday, Owmby tried to compare Yates with Osama bin Laden before he was stopped by the court and the witness. On Tuesday, he tried to compare her with a bank robber who thinks "it's a good idea" to rob a bank.

Quite naturally, Owmby wants jurors focused upon the notion of responsibility and why murderers can't get off with murder. He wanted to send jurors the signal "that the next mother, the next person, doesn't just do what they think they ought to do." But the law permits some murderers to get away with murder because they were insane at the time. And it's not like any medical expert ever testified that Yates killed the kids just because she felt like she "ought to."

None of this may matter. The State could lose the battle and win the war because the language of the Texas insanity statute - requiring the defense to prove a negative, that the defendant did not know her conduct was wrong - makes it difficult, perhaps impossible, for an insanity defense to succeed. As lead defense attorney George Parnham put it: "If this woman doesn't meet the test of insanity in this state than no one does. We might as well wipe it from the books." The jury has been given the cloth to do just that. And it's is in their hands.