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Citing the effect of false testimony by an expert witness forthe prosecution, Houston’s 1st Court of Appeals on Thursday overturnedAndrea P. Yates’ 2002 murder conviction and ordered a new trial for thementally unstable Houston woman who drowned her five children in abathtub in 2001. Yates was found guilty in March 2002 for the murder of three ofher five children and sentenced to life in prison. In a 12-page opinion written by Justice Sam Nuchia, a formerpolice chief in Houston, a three-justice panel of the 1st Courtconcluded there is a “reasonable likelihood” that false testimony by Dr.Park Dietz, an expert witness for the prosecution, could have affectedthe judgment of the jury. The panel found 230th District Judge BelindaHill abused her discretion by denying a motion for mistrial filed byYates’ attorneys after they learned that Dietz falsely testified that anepisode of the television program “Law & Order” — about a woman withpostpartum depression who drowned her children in a bathtub and wasfound insane — aired before the crime. No such episode was ever shown. Alan Curry, chief of the appellate division at the Harris CountyDistrict Attorney’s Office, says the prosecutor’s office will file amotion for rehearing, and if that is unsuccessful, appeal the 1stCourt’s decision to the Texas Court of Criminal Appeals. “We’re still determined to keep this conviction,” Curry says. In addition to Nuchia, the 1st Court panel included ChiefJustice Sherry Radack and Justice Tim Taft. The opinion came out lessthan a month after oral arguments on the appeal. Yates’ attorney, George Parnham, says the court’s opinion is notsurprising, although the speed of its release is. “The suddenness of the opinion by the 1st Court has taken meaback, but I’m convinced that the right thing was done,” says Parnham,of Parnham & Associates of Houston. With the Harris County DA’s office continuing to appeal, Parnhamsays he wants Yates to stay in the Texas Department of CriminalJustice’s Skyview Unit in Rusk for the time being, where she isreceiving mental-health treatment. “Any thought that I would move to get her released pending thedisposition of this case, that will never happen,” he says. Parnham says he doesn’t want to retry the case, mostly becauseit would be traumatic for Yates, and says he would like in the future toopen talks with the DA’s office to come to a resolution that would meetboth Yates’ mental-health needs and the needs of the DA’s office. “Andrea’s level of comfort is foremost in my mind and she doesnot want to go through the rigors of once again being subjected to ajury determination,” he says. Parnham says he spoke on Thursday to Yates and her husband, Rusty,and both are pleased with the court’s opinion, but have many questions.Rusty Yates has filed for divorce. The Yates case became national news because of the horrificnature of the deaths of the five children, who ranged in age from 6years to 7 months. And the conviction of Yates, who suffered frompostpartum depression, has drawn attention to the state’s insanitydefense laws. Under Texas Penal Code �8.01, a person seeking acquittaldue to insanity must convince a jury that he or she suffered from asevere mental disease or defect and did not know his or her actions werewrong. The Texas Legislature may address the insanity defense law duringthe 79th session, which convenes Jan. 11. The jury that convicted Yates rejected the defense’s insanitydefense, and found her guilty. But the jury found she was not acontinuing threat to society, and sentenced her to life in prison. Shewas charged with capital murder. According to the 1st Court’s opinion, four of five psychiatrists and onepsychologist who treated or assessed Yates after the June 20, 2000,murders testified at trial that she did not know right from wrong andwas either incapable of knowing what she did was wrong or believed heracts were right. Dietz, on the other hand, testified that although Yates waspsychotic on June 20, she knew what she did was wrong, Nuchia wrote inthe opinion. Nuchia wrote that the panel agrees that the prosecutors whotried Yates’ criminal case did not know when Dietz was on the witnessstand that he gave false testimony in connection with the “Law & Order”episode. But the panel found that prosecutors used Dietz’s “Law & Order”testimony twice — once when cross-examining a defense expert, Dr. LucyPuryear, and in closing arguments — and that “served to give weight tothat testimony.” “We conclude that the testimony, combined with the State’scross-examination of Dr. Puryear and closing argument, was material,”Nuchia wrote. After reversing and remanding on that one issue, the panel didnot address Yates’ 18 other points of error.

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