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If Andrea Yates, who is accused of drowning her five children in the bathtub of her Houston home, goes on trial as scheduled Jan. 7, she may not win a final victory — even if her insanity defense succeeds. That’s because prosecutors in the case, as they seek a death sentence for Yates, are pursuing capital murder charges for only three of the five deaths. They are postponing prosecution on the other two deaths, apparently giving them the option of taking a second bite at the apple should they fail in the first trial. “They’re obviously a little bit insecure,” says criminal defense lawyer Kent Schaffer, a partner in Houston’s Bires & Schaffer. He says prosecutors have a good case, but so do Yates’ defense lawyers. Schaffer is not involved in Texas v. Andrea Pia Yates, but he has worked on death penalty cases in the past. The same is true of former Harris County, Texas, prosecutor Chip Lewis of Houston’s Cogdell & Lewis, who says there is not necessarily any indication of prosecution weakness in the common practice of holding out some of the cases from the first trial. He says even seemingly strong cases can lose at trial and that it would be “prosecutorial malpractice” not to hold back at least one capital murder case. “It would be poor administration for the public to not employ the strategy they are using,” Lewis says. Prosecutors, defense lawyers and witnesses involved in the case are under a gag order issued by state District Court Judge Belinda Hill and can’t comment. Lewis’ Partner, Dan Cogdell, says there is no immediate way of knowing if the prosecution strategy is based on insecurity or is “just smart lawyering.” “They don’t have to fire all the bullets in their gun,” Cogdell says. EXPERT TESTIMONY Yates’ trial will feature horrific testimony. In a Dec. 3 motions hearing, where the defense unsuccessfully sought to suppress statements and confessions by Yates, Houston police officers who arrived at her home on the fateful day of June 20 ran through much of their basic testimony. The first officer to arrive said he was met at the door by a wet and “excited” Yates, who told him that she had just killed her children. “What?” officer David Knapp testified was his response, saying she then said, “I killed my kids.” He found four dead children on a bed, covered and tucked in, each with a pillow, some with foam coming from their mouths. It wasn’t until a second officer arrived at the home that a fifth body was discovered in the bathtub. George Parnham, of Parnham & Associates of Houston, said in court that prosecutors were preparing a display on how a person dies while drowning. The prosecutor, Assistant District Attorney for Harris County Joe Owmby, said technicians were in fact creating a computer-aided graphic. Hill granted Parnham’s motion to see the display before trial and possibly challenge its admittance. But for all the gruesome details, Schaffer sees the duel between experts on each side as key to the trial. Schaffer and Cogdell agree that defense lawyers Parnham and Wendell Odom, a Houston solo, are likely to win at least one skirmish on that battlefront, one involving videotape of Yates. The state has hired renowned forensic psychiatrist Dr. Park Dietz of California to evaluate Yates. Dietz has testified as an expert witness for the prosecution in numerous major trials, including those of Jeffrey Dahmer and John Hinckley Jr. And he has consulted for the FBI, CIA and major corporations on protection from enraged employees. Dietz also is a technical adviser for the “Law & Order” television series. Parnham said in court that Dietz interviewed and videotaped Yates over the course of three days in November. He said Dietz gave a verbal opinion that Yates was sane at the time of the drownings. “I don’t know how he knows this,” responded Owmby, to Parnham’s description of the state expert’s findings. But the prosecutor got more worked up over Parnham’s effort to get a copy of Dietz’s videotape before trial. “Our expert,” Owmby said, his voice rising as he argued that the tape was not discoverable. “Our expert’s work product.” Judge Hill pointed out that it was also a statement of the accused and put off ruling on Parnham’s motion. Schaffer says preparatory work for trial typically is work product and not discoverable. But he says statements of the accused fall outside that protection. He compares it to a police officer investigating a crime and taking a confession. Schaffer says once Parnham has the tape it can be used as a possible defense weapon because “two experts can come to differing opinions, depending on who hired them.” “Why would the state want to risk something that fundamental in a case where the defendant is facing the death penalty?” asks Cogdell, of the prosecution’s effort to keep Dietz’s tape to itself. Cogdell says if the tape is kept from the Yates team, it would give the defense strong grounds for an appeal. FRAME OF MIND Possible strategies for the Yates trial emerged during last week’s motions hearing. At the time of the drownings, Yates was on medication for mental problems and had a history of mental illness, according to court records and testimony. But to find Yates not guilty by reason of insanity, a jury must determine that she did not know right from wrong and should not be held criminally responsible for what she did. On this front, the prosecution has a great deal of ammunition. Officers in the motions hearing testified that Yates looked them in the eye when answering questions. They said she understood instructions, such as to sit down on a love seat, and she voluntarily consented to a search of the house, signed papers and understood what was happening. Officer Frank Stumpo, the second officer on the scene, says he asked Yates if she knew what she had done. “She looked me directly in my eyes and said, ‘I know what I’ve done,’ ” Stumpo testified. Stumpo said as he tried to take Yates out of the home via a back door, he found the door locked and said to himself, “ Great, they’re locked,” at which time he said Yates indicated to him where keys could be found. “It was an unsolicited response to a nonquestion that wasn’t directed to her.” But Parnham asked if Yates showed any particular emotions or if she grimaced or fidgeted at the scene. Stumpo said she did not. He described her as “stoic” and said “she didn’t appear upset at all.” That was pretty much how Yates appeared in court during the hearing — quiet, unemotional and dispassionate, even during testimony about the deaths of her children. Yates appeared to avoid eye contact with her husband, seated in the front row of the room. And she didn’t react when the courtroom door opened for the entrance of a witness, and a crying baby could be heard in the hallway outside. In fact, officer Knapp, pressed for how Yates appeared on the day of her arrest, said, “She looked like she does now.” Knapp also appeared to back away from his description of Yates as “excited” when he first arrived at her home. Under cross-examination, he said she was “breathing somewhat laboriously” and added, “she wasn’t jumping around or anything.” “If she was sane at the time, I would not expect her to come out with a stoic, matter-of-fact expression on her face,” Schaffer says. “That to me is almost a sign of insanity rather than sanity.” He adds that the lack of an apparent criminal motive for the drownings and Yates’ history of mental problems lends itself to an insanity defense. “You have to let the jury see her, that she just ain’t right,” Lewis says, adding that Parnham’s possible defense of Yates as a lifeless and listless person on the day of the killings — and still to this day — has a chance of winning with a jury. “If somebody sits there weeks on end watching her, and they feel she ain’t right sitting there, there is a great chance they don’t return a guilty verdict.”

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