Houston Chronicle

July 1, 2001, 1:09AM

What now for Andrea Yates?

The mother of five drowned children is accused of a horrifying crime, but most such cases haven't led to a death sentence

By MIKE TOLSON
Houston Chronicle

As the last words of a father's farewell echoed last week across a city still stunned by the enormousness of his loss, talk returned to the woman responsible for it. Specifically, what should be done with her?

Internet and television polls have asked their audiences whether Andrea Pia Yates should face the death penalty for drowning her five children. So have radio talk-show hosts. A locally based victim's rights organization has called for prosecutors to seek the ultimate sanction regardless of her mental condition.

District Attorney Chuck Rosenthal will make the decision, and it will depend on an investigation expected to conclude at the end of the month. Yates' medical history will be relevant. So will examinations by court-appointed psychiatrists.

There will be pressure to go for death. The facts of the crime carry an inertia that is hard to overcome, especially in Harris County, where the long-standing philosophy of filing capital murder charges whenever the facts fit has helped make it the death-penalty capital of the United States.

"There will be pressure from a lot of different directions, and in multiple-victim cases, the pressure to seek (a death sentence) is greater," said Jordan Steiker, a professor and death-penalty expert at the University of Texas Law School.

That said, Steiker insisted the case falls short of the death-row norm.

"It's important to keep this in perspective: Death rows are not filled with family-murderers," he said. "The criminal justice system is concerned with the nature of the offender as well as the nature of the offense. You won't find many people who kill their children that have the extensive criminal histories as those normally on death row. Their harm is enormous, but they are not regarded as as dangerous."

History supports his thesis. Obtaining capital punishment for a mother with known psychiatric problems who has killed her children, regardless of the number, is almost unheard of.

Of the 55 women who were on death rows across the United States as of April 1, nine were sent there for killing their children. None of those cases, however, involved a defendant offering an insanity defense.

The only exception in modern times was Christina Riggs, who was put to death last year in Arkansas for injecting her two sons with potassium chloride, the chemical used in executions.

Because of her history of depression, Riggs' attorneys tried an insanity defense. Her suicide attempt immediately after killing her children did not convince prosecutors that she was mentally ill, nor jurors to spare her.

Far more typical of women on death row for killing their children is Frances Elaine Newton of Houston, sentenced to die in 1987 for killing her husband and two sons in a scheme to collect insurance money.

"This will be a real test of Rosenthal's ability to control the mad-dog element of his prosecutors who lather at the prospect of trying a highly publicized case and asking for the death penalty," said criminal defense attorney Dick DeGuerin.

In 1986, DeGuerin defended another notorious mother, Juana Leija, who in a despairing fit threw six of her seven children into Buffalo Bayou. Passers-by rescued four of the children, but two drowned.

As bad as the case seemed at first, DeGuerin ultimately negotiated a plea agreement in which Leija received 10 years of probation.

"Her husband drove her to it and drove her crazy," DeGuerin said. "She was so helpless and felt such desperation that that drove her. She tried hanging herself. She tried taking pills. She realized that would not solve the children's problems. They would still be left with this cruel man. Finally, she chose the way she did."

Prosecutors did not agree with his assessment, DeGuerin said, but he was persuasive in arguing that they would either lose or look bad in winning.

"People who are crazy need to be dealt with not as career criminals but as someone who is sick," he said.

The literature of forensic psychiatry contains case after case of those like Yates and Leija. Though rare statistically, such maternal filicides are not hard to find regardless of region or period. The majority of such mothers have ended up in prison, though not in a death chamber.

Three years ago, Khoua Her, a 24-year-old immigrant mother in St. Paul, Minn., strangled her six children, claiming she did so as a loving act to save them from enduring the type of abuse and mistreatment that had plagued her.

In a grisly scene in Buffalo, N.Y., in the summer of 1978, Gail Trait stabbed her four children to death in what she told police was an attempt to save her soul. Relatives said she spoke of a voodoo curse.

And in a scenario that would be hauntingly familiar to Russell Yates, a housewife in suburban Honolulu named Maggie Young drowned her five children in a bathtub while her husband was away on a mission in 1965.

Her was sentenced to 50 years in prison. Trait served 10 years before an appeals court overturned the murder conviction and found her insane, whereupon she spent another decade in a psychiatric hospital. Criminal punishment was not deemed appropriate in Young's case, and it ultimately proved moot. She hanged herself six months later.

Young's widower, James, does not believe Andrea Yates is any more deserving of the death penalty than was his wife.

"This ill woman does not need to be sentenced to prison, certainly not charged with first-degree murder," Young wrote to the Honolulu Star-Bulletin last week. "My wife was charged with first-degree murder. But Hawaii recognized her illness and gave her the medical help she needed. Unfortunately, she did not survive the cure."

Still, there is the image of five dead children looming over Rosenthal's decision. His counterpart in Williamson County, Ken Anderson, has been in a similar situation and knows that no explanation can make it go away.

"Basically, I'm not sure how you get past the facts of the case," said Anderson, who prosecuted Tina Cornelius for throwing her children off a cliff in 1999 and would have sought the death penalty if there had been more evidence.

"The Yates and Cornelius cases are really different from normal cases where a parent kills a child," Anderson said. "This is an evil mindset beyond what most people can imagine."

As with any capital case, a strong factor in the decision would be the likelihood of getting the sentence imposed. Harris County juries are accustomed to handing out capital punishment. But typically those involve murders for financial gain or with predatory intent.

"Even if the jury rejects insanity, the psychological factors are usually mitigating enough that it is very rare for them to get the death penalty," said Phillip Resnick, a Cleveland forensic psychiatrist who has interviewed hundreds of mothers who have killed their children and testified in numerous cases.

Case in point: Susan Smith. The notorious Smith drowned her two young sons in a car and then blamed their disappearance on a carjacker. She was far from a sympathetic character. But her sad personal history was enough for a South Carolina jury to reject the death penalty and give her a life sentence. Avoiding a death penalty is one thing. Avoiding punishment entirely is quite another.

A psychiatric defense seldom succeeds. Mental illness or defect is not hard to prove, lawyers say, but convincing a jury that the defendant did not know right from wrong at the time of the act is harder when balanced against graphic evidence of an awful crime.

"I think that the problem any lawyer would have is going to be the sheer number of bodies, and I can't overstate that," said veteran Houston criminal defense attorney George Secrest. "Five human beings were extinguished, and they were very young. That is a tough one to deal with."

Tough, but not impossible. A handful of successful insanity defenses have been mounted in Houston over the past decade. Among them was Secrest's effort on behalf of Evonne Rodriguez, who in 1997 beat and strangled her baby, then tossed him into Buffalo Bayou.

Rodriguez was found not guilty by reason of insanity after Secrest carefully pieced together the history of Rodriguez's slide into apparent madness.

"Statistically, you have a much better chance of prevailing in an insanity defense if it's a violent crime and if you kill a member of your own family," Secrest said. "Also, women fare better than men in these types of cases."

The battle over Yates' fate has begun. Police were quick to divulge details of her confession and behavior immediately after her arrest. Her husband was equally ready with information about her psychiatric history. Neither side is talking now because of a gag order imposed by state District Judge Belinda Hill.

Secrest and other defense attorneys not related to the case predicted prosecutors ultimately will forgo the death penalty but not capital murder charges, regardless of Yates' medical history.

"When you have five kids, they are going to fight you tooth and nail," said attorney Ricardo Rodriguez, who represented child-killer Claudette Kibble in 1997. "You can tell by their comments about her calling 911 and confessing calmly to the crime that they are disputing that sanity is an issue."

Coincidentally, Yates' attorney, George Parnham, and Rosenthal tangled in an insanity case in 1994. Parnham represented Calvin Bell after a 1992 rampage at Piney Point Elementary School in which Bell shot two police officers.

Parnham won that case. It helped that Bell had a documented history of mental problems and had been prescribed anti-psychotic medication. What helped more, however, was an act of providence: Neither of the officers died.

Copyright 2001 Houston Chronicle