Video: Photos of Yates' children in court?

updated 2/22/2006 12:58:02 PM ET 2006-02-22T17:58:02

As Andrea Yates waits in a secure state mental hospital for a new trial, her attorney is asking that any and all pictures of the victims, her own children, who she admits drowning, not be shown to jurors during her second trial.  Jurors in Yates‘ 2002 trial didn‘t buy her insanity defense and convicted her of capital murder. 

The conviction was overturned last year when a Texas court of appeals ruled a key prosecution witness gave false testimony.  During Yates‘ first trial jurors viewed dozens of photos of the crime scene and the victims, 7-year-old Noah, 5-year-old John, 3-year-old Paul, 2-year-old Luke and 6-month-old Mary, including one of Noah floating face down in the bathtub with his arms outstretched. 

But Yates‘ lawyer says the pictures could confuse jurors or unfairly prejudice them.  Andrea Yates‘ attorney, George Parnham, former Texas prosecutor Chris Downey and criminal defense attorney Jonna Spilbor joined Dan Abrams to discuss the case.

DAN ABRAMS, HOST 'ABRAMS REPORT': I know this is an issue that came up for the first trial also.  But explain to me how seeing pictures of the victims in a trial could confuse the jurors.

GEORGE PARNHAM, ANDREA YATES‘ ATTORNEY:  Well, you know, the ultimate issue here will be a determination by a jury as to whether or not Andrea Yates was severely mentally ill, and whether or not that mental illness caused her not to know what she was doing was wrong.  As in any murder case, lawyers file motions all the time, so that pictures that might be inflammatory that might be so gruesome as to cause a normal individual to be revolted about what they see might have a tendency to overwhelm a juror to not consider evidence of mental illness and decide the facts on what they see. 

ABRAMS:  It would seem to me you could make that argument though in any case where there‘s a mental defense and say, look, we don‘t want the jurors to see what happened. 

PARNHAM:  And you‘re right, and you know, a lot of these photographs are going to come in, some are not.  In the first trial the judge made some crucial decisions about the admissibility of some photographs.  Some were admitted.  Some were not. 

One of the elements on our appeal that was not addressed by the appellate court consisted of that particular decision on some of those photographs.  It‘s also important in this case, Dan, to basically know that the person that is seated next to you at counsel table, Andrea Yates, is mentally not the same person that did what she admittedly did on June the 20th of ‘01.  And I‘m very concerned about the possibility of decompensating right there in the courtroom, and that concern is supported by some doctors who have seen her and expressed that fear as well. 

ABRAMS: Chris, from the prosecutor‘s point of view, this is one of those efforts that drives you crazy, right? 

CHRIS DOWNEY, FORMER TEXAS PROSECUTOR:  Well, it can drive you crazy.  I mean certainly what drives you crazy as a prosecutor is that it forces you to reconsider your game.  You‘ve got to figure out which photographs you want to use, because you don‘t want to trigger any element that the defense might be able to carry up on appeal. 

ABRAMS:  But I mean what are they really going to win on appeal?  Let‘s even assume that they let in too many photos, what, an appellate court is going to come back and say we‘re going to reverse this ruling—reverse this verdict in this case because one too many, two too many photographs of the victims were shown? 

DOWNEY:  No, I don‘t think it‘s going to be a matter of one or two too many photographs.  I think the court of appeals will give the jurors more than that, Dan.  But I do think that there is a point that you can reach either with a specific photograph that might have an inflammatory element or in an obviously objectionable manner you introduce too many photographs. 

ABRAMS:  Do you think that it‘s fair to consider—I mean you heard Mr. Parnham a minute ago saying that there was a fear on his part that Andrea Yates has now sort of come to, to a certain degree, and that if she sees the pictures of the kids, she‘s going to lose it. 

DOWNEY:  Well, I think that‘s certainly a defense attorney‘s appropriate concern.  However, it‘s not going to be a legal concern for the courtroom.  They‘re going to be interested in what‘s relevant.  The effect that it has on the defendant unfortunately is not one of the grounds at all that the court has to consider.

ABRAMS:  Jonna Spilbor, is your position that it‘s just not relevant? 

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:   Not that it‘s not relevant, that it‘s not necessary in order to prove what the state needs to prove.  No jury needs to see a dead baby floating in a tub to determine whether Andrea Yates was legally insane at the time she committed the crime.  Andrea is not contesting that she did these horrible crimes; she‘s not contesting the manner or cause of death. 

They need to prove was she insane.  We don‘t need to see the pictures, the innocent pictures, the dead pictures of these poor children.  It‘s not necessary and it‘s going to have a terrible effect on the jury, even after they walk out of that courtroom. 

ABRAMS:  But I think the response would be, it‘s supposed to have a terrible effect on the jury...

SPILBOR:   No, exactly the opposite.  You‘re not supposed to appeal simply to the passion of the jury...

ABRAMS:  But it‘s not simply to the passion.  It‘s part of the case.  I mean it‘s the results.

SPILBOR:   ... what does a dead child floating in a tub go to prove?  We‘re not contesting the death of the kid. 

ABRAMS:  I know but you can‘t just stipulate—you can‘t when you‘re a defense attorney say you know what, I‘m going to pick and choose everything I‘m going to stipulate to, and once I stipulate to it, it means the prosecutors can‘t introduce any evidence about it. 

SPILBOR:   Exactly.

ABRAMS:  That‘s not the way it works...

DOWNEY:  Dan, to put one thing in there, we‘re trying a murder case here.  Insanity is the defense.  But the state is going to be busy trying a murder case.  And as part of that murder case they are going to be putting on critical relevant evidence of the scene, and that photograph was taken by a crime scene unit, it‘s the best evidence of the condition of the scene at the time it occurred. 

SPILBOR:   Evidence of death can come in through the testimony of the medical examiner and the police officers.  We don‘t need to see it head on. 

ABRAMS:  All right.  But I think even Mr. Parnham appreciates the fact that many of these pictures are going to come in, right Mr. Parnham? 

PARNHAM:  No question, yes. 

ABRAMS:  Let me ask you this.  Andrea Yates, you say she‘s different today than she was during the first trial, in what way? 

PARNHAM:  Well, Andrea has gone through close to five years of some of the best mental health care that this state has to offer, albeit behind bars for four of those years.  Now she is a patient in a mental health facility.  Andrea Yates will need mental health care for the rest of her life.  But she has reached a degree of normalcy as a result of not only being properly taken care of by her doctors, but medications and she‘s able to carry on a conversation.

ABRAMS:  Well I was going to ask you about that.  I was going to ask you—so that would mean that she appreciates then what she‘s done? 

PARNHAM:  Yes, I—no question about it.  Of course the word appreciate, it means different things to different people.  But certainly she‘s aware of what occurred.  She is acutely aware of the fact that her children are dead by her own hand.  She mourns their loss every minute of every day and I mean that‘s where it is. 

ABRAMS:  I‘ve said on this program before that, you know, I think that they should be able to work out a way to put her in a mental facility, because the prosecutors don‘t dispute the fact that she was mentally ill at the time, and if there‘s a concern that she‘s going to be released they could always try her later on two of the other charges, which they have not indicted her for as of yet. 

So, Chris Downey, with that in mind, shouldn‘t they be able to work out a deal here?  Shouldn‘t the prosecutors be able to come to George Parnham and say look, we all agree, the problem—the thing that‘s so crazy about this case is everyone seems to agree on just about everything except what should happen to her. 

DOWNEY:  I agree with you, and I think that the—there is a provision in the Texas statute that does allow for her to remain in virtually continuous mental health confinement, at least until the court with jurisdiction determines that she can be safely released.  It would be very unusual, and I don‘t know that there is a whole lot of faith in the Texas public in that system.  And I wonder to what extent the prosecution is trying this case because of the lack of faith we have in the way we treat our mentally ill here...

ABRAMS:  But again, the concern is that she‘s going to be released, they can reassure people, don‘t worry.  The day—you know a week before she‘s going to be released, we‘ll indict.  There‘s no statute of limitations on murder.  We‘ll indict on the other two charges. 

DOWNEY:  No, you‘re absolutely right.  That option exists.  You always have the ability as the prosecutor to do just that, to approach the defense and strike a deal...

ABRAMS:  George Parnham, it doesn‘t sound to me like you‘re going to be able to work out a deal here. 

PARNHAM:  You know I don‘t think so.  We‘ve exhausted every alternative available.  We have a couple of things that are paramount that she gets continued mental health care, and that her physical safety is provided for.  Going into general population, Texas Department of Corrections, neither one of those issues are going to be taken care of.  And that probably will lead us to selecting a jury in this case. 

Watch the 'Abrams Report' for more analysis and interviews on the top legal stories each weeknight at 6 p.m. ET on MSNBC TV.

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