Houston Chronicle

Sept. 11, 2001, 7:11AM

Yates jury selection is today

Panel will rule on competency

By LISA TEACHEY
Houston Chronicle

National attention will be focused on a Harris County courtroom today as 120 citizens are culled down to the 12-person jury who will make a major decision regarding Andrea Pia Yates -- whether she is fit to stand trial.

The panel will begin its work Wednesday when a competency hearing gets under way for the Clear Lake mother accused of drowning her five children in the family bathtub.

Yates, 37, has pleaded not guilty by reason of insanity to two charges of capital murder in the deaths of Noah, 7, John, 5, and Mary, 6 months. The mother called police to her southeast Houston house in the 900 block of Beachcomber on June 20 and admitted to killing the children along with their siblings Paul, 3, and Luke, 2.

Harris County District Attorney Chuck Rosenthal is seeking the death penalty. He said the decision was made to allow for a full range of punishment options.

The jury selected today will determine only whether the mother, who has a history of hospitalizations for mental illness, is competent. They will not decide whether Yates should be acquitted because she is insane, live out her life in a prison cell or be put to death. That issue will be decided later if the case goes to trial.

State District Judge Belinda Hill ordered the competency hearing last month because there was a discrepancy about Yates' mental state after she was arrested. A court-appointed psychologist had found Yates was competent, but defense lawyers said their doctors disagreed.

Under Texas law, Yates can stand trial only if she first meets a legal definition of competency, meaning she understands the charges against her and can aid her defense lawyers. Competency refers to her mental state now and must be decided first.

Insanity refers to whether she should be held criminally responsible for her actions. The law says a jury can find her legally insane only if she had a severe mental disorder and could not tell right from wrong when the crime was committed.

Legal experts said the difference between competency and insanity commonly is blurred by the public.

"No matter how much we stress the distinction between this hearing and her trial, the danger here is that this jury's decision slops over to the jury hearing the insanity issue," said Neil McCabe, a South Texas College of Law criminal law professor."The public needs to understand these are two very different issues."

If Yates is found incompetent, the jurors for the competency hearing will be asked if she is likely to become competent in the future. If they think she will, Yates probably will be remanded to a state mental facility to undergo medical treatment and therapy. Another hearing would be held at a later date to determine whether she has improved.

If the jury finds her hopelessly incompetent, she would likely be institutionalized for an indeterminate amount of time, with the court making periodic checks on her status.

Should the panel find she is competent, Yates' case would proceed to trial, during which a separate jury would decide her ultimate fate.

The jury's decision must be unanimous either way on the competency issue.

The defense will have the burden of proving Yates is incompetent.

"It's totally the flip-side from a determination of guilt or innocence where you are presumed to be innocent and the state must prove otherwise," said Brian Wice, a lawyer not connected to the case.

"Even though this woman's conduct is so unconscionable that it's off the Richter scale, the state gets to say she is presumed to be competent," Wice said. "The defense must prove she is not."

Despite a court-imposed gag order on all parties involved in the case, the swirl of media attention surrounding Yates could prove challenging when it comes to finding 12 people who can forget what they have heard about her.

"The test for picking jurors isn't whether they have been exposed to the pretrial publicity," Wice said. "The test is whether they can put that aside and make a decision based on the evidence and the testimony they hear."

Even if jurors take an oath to render a true verdict, McCabe said, what they have heard in the media could linger in their thoughts when it comes to making a decision.

"They are only human," McCabe said. "A person does not have a right to a jury of ostriches. Neither side wants a panel of people whose heads are stuck in the sand."

Sandra Guerra Thompson, a University of Houston criminal law professor, said the more the defense can spread the word through the release of documents the more they can try to sway public opinion.

Last week defense lawyers George Parnham and Wendell Odom filed two years worth of medical records with the court showing Yates had been hospitalized several times for severe depression, homicidal thoughts, suicide attempts and psychosis.

One doctor noted Yates and her husband, Russell, were warned after the birth of their fourth child that having more children could cause Yates' mental state to further deteriorate. Another doctor noted sometime before the children's death, the mother had filled up the bathtub but would not tell anyone why.

On the other hand, Wice said, the fact that some of Yates' family has been giving interviews doesn't bode well for her side.

Her brother, Andrew Kennedy, has said his sister is doing better because she is being treated with medication in the psychiatric unit of the Harris County Jail.

Prosecutors Joe Owmby and Kaylynn Williford have subpoenaed Kennedy and other family members to testify at the competency hearing.

Copyright 2001 Houston Chronicle