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As Chuck Rosenthal prepares to make the highest-profile decision of his seven-month tenure as Harris County, Texas, district attorney, he’s getting plenty of advice on what to do — both solicited and unsolicited. Although the assistant DAs assigned to prosecute Andrea Pia Yates will have a say in whether the office should press for the death penalty for Yates’ alleged slaying of her five children, the call is ultimately Rosenthal’s. About 400 captivated members of the general public also have weighed in on the subject, hoping to sway his decision, Rosenthal says. “I’ve gotten letters from all over the world,” says Rosenthal, adding that writers were initially split on pursuing the death penalty for Yates, who was indicted by a grand jury on murder charges Monday. He’s since lost count of the vote. “It’s kind of surprising,” Rosenthal says. “And I answered every one of their e-mails.” Rosenthal expected to make his decision last week. Because of a gag order issued in the case, he isn’t saying publicly what he’ll do. However, the public interest in the case and Rosenthal’s impending call is hardly surprising. Yates, who has been described by friends and family as a loving mother, is charged with the most unimaginable of crimes — the methodical drowning of each of her young children on June 20. Yates reportedly struggles with severe depression, which will surely be raised as a mitigating factor in a crime that was completely irrational. Prior to the gag order, Yates’ attorney George Parnham said he’s exploring an insanity defense. “I would certainly hope that the state would not seek the death penalty,” Parnham said. “But I understand the climate that surrounds these actions.” Harris County’s bloodthirsty reputation, combined with the national debate over executing mentally ill and mentally retarded inmates, makes Rosenthal’s decision all the more intriguing. Of the 453 inmates now on Texas’ death row, 155 of them were prosecuted by Harris County DAs. Yet Harris County DAs have shown a form of compassion to several defendants after they’ve already arrived on death row — including one defendant Rosenthal personally placed there before he was elected DA in November 2000. Houston prosecutors have not pressed for the execution of six inmates who are mentally ill and don’t meet the competency standards to be executed. Rosenthal is unlikely to announce his decision in the Yates case. He is abiding by 230th District Judge Belinda Hill’s order preventing the lawyers from commenting about the specifics of the case. A grand jury has yet to consider the capital murder charges against Yates. Once the grand jury issues its decision on the charge, Rosenthal will let the court know his plans by filing a motion. Yet Rosenthal says his choice won’t be a difficult one. “The decision is not that hard of a process,” Rosenthal says. “But trying to understand the case is a very laborious process.” POLITICS, POLICY AND ILLNESS As George W. Bush campaigned for the presidency, the national media took a hard look at Texas’ capital punishment system during the time Bush was governor. The resulting unfavorable press, painting Texas as callous in its attitude in handing out death sentences — especially to mentally ill and mentally retarded defendants — led to initiatives in the Texas Legislature this year to reform the process, including reforms to the indigent-defense system and a ban on executing the mentally retarded. However, Gov. Rick Perry vetoed the execution ban. Some criminal law experts say the effects of death penalty politics are being felt particularly in the jury box where jurors may be more reluctant to execute defendants with significant mitigating factors. But Rosenthal says the politics surrounding the presidential election did not affect his office’s policy on pursuing the death penalty. Several other Texas prosecutors who’ve handled numerous death penalty cases believe Rosenthal’s decision won’t be easy in the present political climate. Combine that with Yates’ documented treatment for depression, and pursuing a death sentence for Yates becomes a difficult and politically volatile task. “It’s not that uncommon that people raise some sort of mental illness defense,” says Alan Levy, chief felony prosecutor for the Tarrant County, Texas, District Attorney’s Office. “What is uncommon is when they have a documented mental illness. Because as a prosecutor, you can’t argue that it’s contrived.” Now isn’t the best time to ask juries for the death penalty if the defendant has a significant mitigating aspect to his case, Levy says. “There’s no reason to press the boundary, especially in the current atmosphere,” Levy says. “Sometimes if the person doesn’t deserve the death penalty, you shouldn’t ask for it.” Recently, prosecutors in other counties have allowed women accused of killing their children to accept a plea requiring heavy prison terms instead of trying them for the death penalty. Often such offers are made because the women have no previous criminal histories and are unlikely to reoffend, regardless of their mental health. Jason January, while assistant district attorney in Dallas, prosecuted Lisa Marie Smith, a Richardson, Texas, mother who strangled her two children, and agreed to allow her to plead to two life sentences last year instead of trying her for the death penalty. “She made the decision easier for us because she had no mental problems at all,” says January, who has since left the Dallas DA’s office to start a civil practice. “She had some documented depression, but nothing severe. And her lawyers said she wanted to take two life sentences.” However, Smith’s lawyers have said in published reports that their client’s mental breakdown led to the children’s murders. January says he left the decision up to Smith. “If she didn’t take it we were going to seek death for her,” he says. “It’s either a decision of the defendant or decision of the people.” John Bradley, first assistant DA in Williamson County, Texas, made a similar deal with Tina Marie Cornelius, who was accused in 1999 of throwing her toddlers off a cliff north of Austin and going on a binge of sex and drugs. Bradley offered her a 60-year sentence, which Cornelius accepted. “That was a very, very hard thing for us. We’ve got this woman who killed her two children. Is she a future danger? Well, maybe,” Bradley says. “But you have to think about how the public will react to that.” One victims’ rights advocate wants Rosenthal to seek the death penalty for Yates. “I would indict for a death sentence and let the jury decide,” says Dianne Clements, president of Houston’s Justice for All. “I believe the crime … committed is death penalty eligible. Holy cow! She [allegedly] killed five children!” “I don’t see a plea bargain in this case,” Rosenthal says. “I think this is a situation that 12 citizens of Harris County ought to judge.” SLOWING DOWN? For decades, the Harris County DA’s office has had the reputation of the toughest in the state, showing little mercy for those accused of crimes. Rosenthal took over for the plainspoken Johnny Holmes, a larger than life 21-year DA who often said he prosecuted the laws the Legislature passed, whether he liked them or not. “They are not going to dismiss a case on a self-defense claim,” says longtime Houston criminal-defense lawyer Stanley Schneider. “Got an eye-witness problem? Let’s go.” Part of the reason Harris County tries so many death penalty cases is because county officials are willing to fund expensive trials, Houston criminal lawyers say. But even Schneider senses introspection at the DA’s office when it comes to death penalty cases. “They’ve been very, very conservative on what cases they try for death and what cases they don’t,” Schneider says. He counts two of his own recent capital murder clients as examples. One was a teenager and the other was a Mexican national accused of being a drug courier. Both could have been tried for the death penalty but weren’t because they didn’t have a criminal record, among other reasons, Schneider says. “I’m going to be hoping that if the mental health is a significant factor that they would not be seeking the death penalty” in the Yates case, Schneider says. This was certainly a factor in the case against Evonne Rodriguez. Harris County prosecutors tried Rodriguez for a maximum life sentence instead of death for strangling her 4-month-old son with rosary beads, believing he was possessed by the devil. Mac Secrest, a Houston criminal defense lawyer who defended Rodriguez in 1998, mounted an insanity defense that succeeded. Such defenses are difficult because the defense lawyer must prove his client didn’t know right from wrong at the time of the crime. Yet Secrest says Rosenthal’s decision to try Yates for the death penalty may turn more on Yates’ potential to be a continuing threat to society — an element prosecutors must prove before winning a death sentence — than on her purported mental illness. “I think they will conclude that she’s not insane, but it’s not a death penalty case. As far as a continuing threat, they ain’t got it,” Secrest says. “If you canvass the neighbors and the church they attended, they’ll find out she was a very loving, doting parent.” Texas law generally targets murderers who kill strangers — the archetypal “cold-blooded killer” — instead of people who murder their own family members, says University of Texas School of Law Professor Robert Dawson, who teaches criminal law. “There are no rules on when a DA who can charge capital murder should charge capital murder. There is no case law,” Dawson says. “What are you going to do? I don’t know.” Interestingly, the Harris County DA’s Office may be the most sensitive to mentally ill death penalty defendants after they’ve already been convicted. For years, the office has not pressed for the executions of six inmates, including Kim Ly Lim, who Rosenthal prosecuted in 1992 for the robbery and execution-style slaying of a 19-year-old and a 5-year-old. If an inmate shows any signs of mental illness, prosecutors have two or three mental health professionals examine them, says Roe Wilson, chief of post-conviction writs for the Harris County DA’s Office. Wilson says the office is just following U.S. Supreme Court guidelines, yet they take a proactive approach in dealing with mentally ill condemned convicts. “My feeling if there’s any indication of someone who’s on death row [who's mentally ill], let’s find out about it now,” Wilson says. “If somebody is incompetent to be executed, I have no interest in pursuing that.”

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