Judging Andrea

A justice surprises critics by reversing the Yates verdict

The reversal of the Andrea Yates murder convictions drew international media attention, but virtually none of it touched on the controversy over the hard-line judge who wrote the opinion: former Houston police chief Sam Nuchia.

The First Court of Appeals justice had been targeted in recent months with recusal motions from defense attorneys contending that he'd warned his staff that he'd fire anyone who ever proposed overturning a guilty verdict. While Nuchia may have been on a handful of three-judge panels that did overturn convictions, lawyers couldn't find an earlier instance where he'd authored any reversals.

Then came the January 6 opinion he wrote in the case of Yates, who had maintained she was insane when she drowned her five children in 2001.

Many defense attorneys wondered if it was his tacit answer to skeptics. "The timing was very interesting," as one lawyer put it. "Nuchia certainly picked quite a case for his 'coming-out party.' "

Another appeal before the First Court contended that Nuchia had become one of the appellate judges over the Yates case only because he'd improperly swapped a civil case with another judge.

Asked if the earlier heat on Nuchia could have influenced the justice's decision on Yates, Assistant District Attorney Alan Curry could only say, " I don't think it probably played any role. But I can't say for sure because I don't know all the facts."

Curry, who is handling the appeal for the D.A., says his office plans to push forward with a challenge to the opinion that threw out the conviction. He'll formally ask this week for a rehearing before all nine First Court justices. That appeal is likely to reach the state's highest level, the Texas Court of Criminal Appeals.

"We think the court has relied upon incorrect law and not addressed all the facts," Curry says about the reversal. Others, however, say the errors in the Yates trial presented Nuchia with a golden opportunity to demonstrate that he could indeed overturn a guilty verdict.

As Nuchia's opinion reflects, his decision came from the false testimony of the state's flamboyant psychiatrist, Park Dietz of California. Of the six mental health witnesses offering expert testimony at the trial, Dietz was the only one to conclude that Yates was sane.

To bolster his findings, Dietz testified about a Law & Order segment (he was a consultant for the series) about a woman who drowned her children and was acquitted by reason of insanity. Yates, a fan of the show, could have gotten the idea to kill her own kids from that episode, the prosecution reasoned.

Prosecutor Joe Owmby seized on that testimony in his cross-examination of defense psychiatrist Lucy Puryear and made additional references to it in closing arguments, saying that Yates's acts had been more diabolic than demon-possessed. After the conviction, jurors learned that there had been no such show -- Dietz was mistaken.

Wendell Odom, the defense co-counsel with George Parnham, says he knew instantly that the false statements -- and the prosecution's use of them -- fit precisely within the Supreme Court's "four-square" test of reversible error regarding false testimony.

"As soon as I heard what had happened, I thought if ever there was a case that falls right in line with that opinion, this had to be it," Odom says. "It looked like automatic reversal."

The ruling that it could have influenced the jury was countered by the media attention afforded to juror Leona Baker, who scoffed at any suggestion Dietz could have swayed the panel's verdict.

However, unnoticed in the publicity was an even stronger stance for reversal from another juror, Ronald Jones. He called the defense to tell them he'd written a letter to trial judge Belinda Hill earlier. It stated flatly that he had been ready to find Yates not guilty by reason of insanity -- but Dietz's testimony had changed his mind.

That was the first Odom and Parnham had heard about the letter, which was not in the court file. Jones had typed it on his home computer, so he had a copy of it, which the defense is now trying to get into the record. "To one juror, that [false testimony] made a definite difference," Odom says.

David Crump, a law professor at the University of Houston, notes that in the event of a retrial, Yates would at least be spared from the possibility of the death penalty, because rulings against double jeopardy prevent it. That would also mean that another jury would likely be less prosecution-oriented, because panelists would not have to be agreeable to the death penalty in order to be eligible to sit on the jury.

Parnham says the defense isn't pushing to have Yates freed (she's currently at the Skyview Unit, a state psychiatric prison in Rusk). They merely want her to get adequate treatment. And Parnham has made overtures about plea negotiations to that effect, to spare her from the "rigors" of another trial.

With the state's star witness discredited, prosecutors should be more interested in settling than in seeking to get the conviction upheld, the defense adds.

If there is no negotiated end to the case, veteran appellate attorney Terry Gaiser points out, the defense could press the issue of possible prosecutorial misconduct. The case would be thrown out if that is found, and pursuing it could at least delay retrial until there is a decision. The appellate opinion emphasized that no such misconduct was found, although there was hardly a full hearing into that issue.

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."

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