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Gaiser explains that prosecutors do not necessarily have to be aware of false testimony for there to be misconduct -- that it could apply if there was simply a finding that the state showed a reckless disregard for the truth from one of its witnesses.
Prosecutors have said that soon after Yates drowned her kids, they received an e-mail that a law-oriented show may have aired an episode on a woman killing her children. So they asked Dietz about it. He has been reported as saying he neglected to check on it, and must have been thinking of his notes about that request when he testified. A grand jury declined to take criminal action.
Assistant District Attorney Curry says the current appeal doesn't concern misconduct claims. "But even if new facts are raised, based on everything I've been hearing, I'm confident there's not going to be any finding of prosecutorial misconduct."
Crump agrees that such a tactic would be a long shot at best. "I don't think you have any proof of intent," he says, "and certainly no proof that the prosecutor was privy to it."
The law professor does find other ironies in the current Texas law regarding insanity. One is that the more bizarre the crime, the more likely the defendant will be found not guilty because of insanity. Had Yates stoned her children to death or cut off their limbs, she may have stood a better chance at acquittal, he explains.
Another irony is that in the event of a not-guilty verdict, the state has to do a complete "flip-flop" to keep the defendant in the custody of a mental institution.
"The district attorney's office has argued at trial, of course, that the person is not insane, not insane, not insane," Crump explains. "And now they are virtually compelled to take the position that this person is crazy, crazy, crazy in order to keep them confined It's the only thing a prosecutor can do under this law."