Houston Chronicle

Sept. 10, 2001, 2:07PM

Unequal justice

Criminal punishment widely disparate in maternal filicide cases such as Yates'

By MIKE TOLSON
Houston Chronicle

Sometimes they use knives, sometimes pillows. Guns are rare, but strangulation is not. Drowning, as all of Houston now knows, is occasionally the method of choice. One woman found a cliff.

Interesting stuff, and ultimately trivial. Among women who kill their children for no apparent reason, what really distinguishes one case from another is not the way they did it but the way they are treated by the criminal justice system.

One woman ends up in a psychiatric facility, having been found not legally responsible for her actions. Another with a similar background who has done essentially the same thing gets 20 years in prison on a reduced charge. A third goes to the pen for life.

Now comes Andrea Pia Yates, the Clear Lake mother who could pay the ultimate price for the killing of her five children in June. Her first step toward justice, or at least adjudication, will come this week with a mental competency trial to establish whether she's healthy enough to stand trial.

The crime of maternal filicide is a challenge as much to justice as to biology. People kill for a variety of reasons, most of them understandable. But loving mothers don't take the lives of their own children. And penal codes are not written with such homicides in mind.

Perhaps the only simple conclusion that one can draw from their legal experiences is that courts often don't know what to do with them.

"The criminal justice system is an extraordinarily dull sword for attacking a problem of this sort of complexity," said Michelle Oberman, a law professor at DePaul University and co-author of a recent book on the phenomenon, Mothers Who Kill Their Children.

It can be a taxing dilemma for prosecutors, who must juggle the awful nature of the crime with the mother's state of mind. They do so with the knowledge that no possible outcome is fully satisfying.

"These are very troubling cases," said Mary Ellen Martirano, a former assistant district attorney in Westchester County, N.Y., who still is haunted by a grisly maternal filicide case she handled a decade ago. "I'm very conflicted about it. I can see both sides."

In that instance, 36-year-old Salvadoran immigrant Maria Amaya slit the throats of her four children, thinking she was sending them to a better place. She then drank lye in a suicide attempt. Court psychiatrists found her legally insane, and the prosecution ended.

Martirano understood that the outcome, according to the law, was just. Amaya did not have the intent behind her acts to be culpable. But it didn't feel quite like justice.

"My belief is that we ought to change the laws," she said. "It's not adequate to send her to the loony bin for a while and then let her out."

That concern may have motivated prosecutors in Findlay, Ohio, in 1998. Kimberlee Snyder claimed postpartum depression led her to kill her 5-month-old daughter. Prosecutor Bob Fry agreed to let her plead guilty to involuntary manslaughter and receive a 15-year sentence rather than proceed in the murder trial.

She could have been sent to prison for life, or freed completely if the jury believed the psychiatrists who testified on her behalf.

The stakes are even higher in the case of Yates. District Attorney Chuck Rosenthal's decision to ask for the death penalty may make sense in Harris County, the capital of capital punishment in the United States, but it is almost unheard of elsewhere for this type of crime.

In only one instance in recent U.S. history has a woman with a reasonable claim of mental problems been sent to death row for killing her children. She was executed in Arkansas last year.

Another homicidal mom, Marilyn Lemak, has been charged with capital murder in a suburb of Chicago. The prosecutor is pursuing the death penalty, though Lemak was offered a life sentence in exchange for a guilty plea. She turned it down, and the case is still pending.

Last month in Stuart, Fla., a 21-year-old woman threw her infant son down a flight of stairs because she said an inner voice told her to test her faith in God, who would resurrect the child. Jennifer Cisowski was indicted for first-degree murder, potentially a capital crime, but prosecutors have not decided what sort of sentence to seek.

In many jurisdictions, the answer to that depends on the perception of the mother's state of mind. Prosecutors in Golden, Colo., recently had to consider the motives of Elizabeth Feltman, who like Yates had been diagnosed with postpartum depression before killing her two young children.

"We have a four-part balancing test in deciding on the death penalty, and it's fair to say that serious mental health issues would weigh heavily in that balancing," said Kathy Sasak, a deputy district attorney involved in the case.

Sasak said the death penalty, though possible in Feltman's case, was never seriously considered. It is worth noting that Colorado has six people on death row and has executed only one prisoner in 30 years.

"There are different philosophical attitudes that (prosecutors) bring to these cases," she said. "Like anyone else, we look at whether the facts of a case would support a charge that could result in the death penalty. But that's not where our analysis ends. That's where it begins."

Given Feltman's established mental history and the fact that she had been hospitalized days before the killings, Sasak's office was inclined to be understanding.

"We have to prove not only the act but the culpable mental state," Sasak said. "It was clear to us that even without the defense raising mental issues, we were going to have to look hard at her mental condition and history because the mental component is part of our standard of proof."

When psychiatrists agreed that she had not possessed the mental state to form criminal intent, Feltman's prosecutors did not fight it. She is currently in a state mental hospital.

Prosecutors in St. Paul, Minn., had a similarly distraught mother in Khoua Her, a Hmong immigrant who in 1998 strangled her six children and then hanged herself in a failed suicide attempt. She, too, may have lacked a true criminal motive. But what she did not have was a diagnosed history of depression.

Chris Wilton, who prosecuted Her, said she had a long history of domestic abuse. It had become apparent to Her, Wilton said, that her estranged husband was going to take the children from her. She thought the children would be better off dead, and that she would be reunited with them in the afterlife.

"She didn't have that motive, and she wasn't stable," Wilton acknowledged. "But she took the lives of six very innocent children who deserved a much better fate. It's a real balancing act between motive -- why she did what she did -- and the damage she inflicted."

The number he came up with was 50 years, which with good-time provisions will make her eligible for release when she is 57. Though Her's lawyers would have argued she suffered from a long period of untreated depression had the case gone to trial, her lack of an established psychiatric profile limited Wilton's sympathy.

"I know that she did this for religious reasons," Wilton said. "But to me, that doesn't have anything to do with mental state. If you have a mental state where you can't control yourself without some medication, we treat that differently from someone who decides to do something for religious reasons."

Minnesota does not have the death penalty.

Harris County prosecutors are under a gag order imposed by the judge in Yates' case and cannot discuss the reasons for their decision to pursue a death sentence. Following precedent was not one of them, however.

Several notable Harris County cases in the last two decades that involved mothers who killed their children were dealt with much less harshly. One of these women, Juana Leija, received probation in a plea agreement despite having thrown her children into Buffalo Bayou.

"Justice does not mean only a just prosecution but a just outcome of the case," said Dick DeGuerin, Leija's attorney. "You have to temper it with compassion and mercy. I think (the prosecutor) was able to see that this was a case that required compassion and not prosecution."

Like many defense lawyers, DeGuerin argues that Texas laws should make some provision beyond an insanity plea to lessen the culpability of mentally ill offenders.

"People who are crazy need to be dealt with not as career criminals but as someone who is sick," he said. "We need some middle ground between not guilty by reason of insanity and guilty according to the indictment."

Some states have that middle ground. Their laws offer so-called diminished capacity defenses that allow mentally impaired defendants to get a lesser charge or lighter punishment even if they don't meet the strict test of insanity.

The fact that Texas laws do not is probably the way that the majority of Texans want it, said defense lawyer Allen Tanner.

"In California, where I went to law school, people used (diminished capacity) all the time," Tanner said. "Texans are less forgiving of people with mental problems committing crimes. In California, people would ask why he would commit the crime. In Texas, they don't want to know why. They just want the person punished."

Oberman, whose book looks in detail at all the types of women who kill their children, understands that reaction, which she feels is typical of many Americans. Other countries give mothers a special status under the law if they kill their young children. There's an assumption that such women are not right in the head and suffer from peculiar motivations.

"I'm a pragmatist," Oberman said. "At this point in time, I don't think it's likely that society would accept a system that says we're not going to try these women. It's important that we have a prosecution, that we go through the ritual that memorializes the loss of innocent life and asks questions about guilt and responsibility and prevention."

Of all those rituals, none may prove more watched than that of Andrea Yates. And it may be the publicity that is her undoing. A less publicized case could slip below the radar. But when you've made the cover of Newsweek, that's no longer an option.

University of Houston law professor David Dow said the district attorney's decision to go for death cannot be removed from that context.

"Andrea Yates by any rational measure is not a death-penalty case," Dow said. "I don't think there can be any other explanation other than the high degree of publicity it has gotten."

Publicity brings scrutiny. And the last thing District Attorney Rosenthal wanted, Dow said, was to be accused of bias toward white, middle-class defendants.

"For a DA not to have sought the death penalty in this case would have taken a great deal of political courage," Dow said.

Copyright 2001 Houston Chronicle