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In the 1960s, a second "volitional" prong was added to Texas law, absolving a defendant if he acted on an "irresistible impulse." But after the acquittal of John Hinckley for the attempted assassination of Ronald Reagan in 1982, more than 30 states, including Texas, eliminated that prong and tightened their insanity defense standards.
"Texas is one of the more restrictive definitions in the country," Udashen says. Periodically, the state legislature looks at changing the law to "guilty but insane" but has taken no action.
As Udashen and Darlina Crowder talked to Angel Diaz, they became convinced that insanity was his wife's only defense.
"On the other hand," Udashen says, "I knew what happened to Andrea Yates. That looked like a classic insanity case. And they lost. Lisa Diaz didn't have any of that. I knew it would be hard, but there was no other defense to raise."
Darlina Crowder took on the role Udashen had played years earlier, working with Diaz and other witnesses. Udashen focused on evidence and trial strategy. He had a risky decision to make: whether to use the videotapes of Diaz.
"If I decided not to use them, the jury wouldn't see them," Udashen says. "There was a lot of good stuff for me but also some bad things. In the first tape, she can answer questions. She doesn't seem insane." And on the last tape, when the questioner asks Diaz if she would have killed her children if a police office had been present, she answers no. That might indicate to the jury that Diaz knew what she'd done was wrong.
While Udashen struggled with those questions, he brought in psychiatrist Doyle Carson and clinical psychologist Rycke Marshall to probe more deeply inside Diaz's world.
Quizzing prospective jurors for the Lisa Diaz capital murder trial last August, Udashen and Darlina Crowder realized they were facing tough odds.
"People were saying, 'I would never find someone not guilty by reason of insanity if they killed their kids,' " Udashen says. "People didn't like the insanity defense. They didn't like psychiatrists and psychologists. They felt there were no standards." The judge excluded 40 of about 70 potential jurors for cause.
Diaz had remained on and off suicide watch. In January, Carson began treating her with antipsychotic medications as well as antidepressants. Though Diaz showed some improvement, she remained paranoid and suicidal as the psychiatrist struggled to find the right treatment approach.
Carson says psychiatry used to regard psychotic delusions like Diaz's as psychologically based. He no longer believes that. "If someone is psychotic, I think it is a biological condition," Carson says. "I think it was a biochemical reaction operating inside of her. Things went awry somewhere in the central nervous system. I don't see people recovering from that kind of condition without medication."
Though the state wasn't seeking the death penalty, Diaz faced an automatic life sentence if convicted. Her psychotic fog had lifted enough for Diaz to contemplate her future. "She worried about ending up like Andrea Yates," Udashen says.
Udashen thought the surprising acquittal of Deanna Laney, whose Tyler trial in March 2004 was covered by Court TV, made his job harder. "I heard this from the jury panel: 'It's not right; she got off,' " Udashen says. "There's this backlash that I had to deal with."
The defense team's confidence went up right before trial when two experts appointed by the judge filed their reports, offering the same diagnosis as the four expert defense witnesses: Diaz, at the time of the crime, was suffering from severe depression with delusional psychosis.
Tests run by psychologist Robert Lovitt indicated Diaz wasn't "malingering," or exaggerating her mental illness. She scored a "0" on a test for psychopathic traits, "indicating that she is not a callous, uncaring, manipulative and impulsive individual." Lovitt's conclusion: "It is highly likely that she was out of control and not adequately aware of the nature and implications of her alleged homicidal behavior."
Udashen spent hours studying the Yates case. "Because she had a lot of psychiatric treatment, they had a lot of different doctors who weren't consistent, and it was confusing for the jury," Udashen says. "The doctors I hired and the doctors appointed by the court were all consistent."
The defense got its biggest shock as the trial opened: Collin County prosecutor Greg Davis opted at the last minute to try Diaz only for the murder of Briana -- meaning that if she was acquitted, Diaz could later be tried for Kamryn's death. It was the same strategy used in the Yates case.
Arguing that Diaz resented her husband and wanted to punish him, Davis called a paramedic and a nurse to testify about Diaz's demeanor after her arrest, attempting to show that she didn't meet the legal definition of insanity because she knew her actions were wrong. She didn't answer the door when her mother and Misty knocked. Diaz told Angel something "bad" had happened to the children. She told a jailer, "I'm so ashamed of what I did."
Subpoenaed by the prosecution to testify about going to her daughter's house that day and finding the doors locked and the blinds drawn, Cano painted Diaz's childhood in glowing terms.
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