Sunday, September 21, 2008

Murder or not?

Overzealous prosecution? or Rightful conviction?

I do not know enough about the case but there does seem to be compelling circumstances to look into it again.

Murder by omission or conviction by design?
John MacCormack - Express-News

CORPUS CHRISTI — Early on Oct. 3, 2006, the morning after her neighbor Hannah Overton had rushed a dying 4-year-old boy to a nearby urgent care clinic, Kathi Haller got a visit from police.

Haller, 30, who took notes of the encounter and later testified about it under oath, said Detective Michael Hess arrived already convinced that Overton had poisoned her foster son Andrew Burd with salt.
“He flat-out accused Hannah of killing Andrew. Hess said, ‘He was throwing poop at her. She's pregnant, she did this to him and then she called her husband to come help her get rid of him,'” Haller recalled.
“He said, ‘She's got all these kids running around. They tried to do right with him, but it was too much. She was looking for a way out,'” Haller added.

Andrew had stopped breathing on the way to the clinic and blood tests that night showed he was dying of acute salt poisoning. Haller, who'd seen him alive earlier that day, found the officer's remarks disturbing and illogical.
“I was flabbergasted. I know Hannah and I knew this hadn't occurred. She could never have done this. She had a back injury,” she said.
But, she said, Hess, whose wife then was a supervisor for Child Protective Services, brushed off her protests. After taking her statement, he left with his partner Detective Mike Ilse.
Haller said she quickly called her longtime friend and neighbor: “I told her, ‘Hannah, they're coming after you. He's accusing you.'”

Contacted last week, both detectives denied Haller's account.
“That's not the truth. I said nothing like that. At the time, I had no clue of what happened,” Hess said.

Less than a year later, on Sept. 12, 2007, Hannah Overton awaited sentencing by District Judge Jose Longoria in the Nueces County Courthouse.
A three-week jury trial, with live television coverage, had just ended with her conviction of capital murder.

At trial, Overton's lawyers had cast Andrew's death as a tragic, self-inflicted accident, likely linked to an eating disorder that led him to gorge and consume strange objects. But, they said, prosecutors had ignored this and instead taken aim at Overton.
“What you're going to hear is that they targeted Hannah from the very first,” defense lawyer John Gilmore said. “And (they) investigated this case with the specific intent to convict Hannah and overlooked any other possibility.”

The state's contrasting version unfolded as a nightmarish tale of an innocent child who had sought love but instead found abuse and death at the hands of an adoptive mother.
The state accused Overton of killing Andrew by feeding him salt or a salty creole spice, then waiting too long to get him critical medical attention.

A medical examiner testified Andrew's death was a homicide. A doctor who had tried desperately to revive the child testified he had numerous scratches and bruises.
“The analogy someone made was that it looks like this child lost a fight with a porcupine,” Dr. Alexandre Rotta said.
He calculated that the salt level in Andrew's blood indicated he had consumed the equivalent of six teaspoons of salt or 23 teaspoons of Zatarain's creole seasoning.

Defense witnesses testified Andrew showed no signs of forced ingestion. They attributed the bruising and scratches to falls, infected mosquito bites and aggressive efforts by medical personnel to revive him.

On the stand, Overton, 31, said she loved Andrew, did nothing to harm him and had tried desperately to save him. The jury deliberated almost 11 hours before finding her guilty.
When polled, the jurors indicated they believed Overton hadn't acted quickly enough to save him. Because of the peculiar jury charge, she was found guilty of capital murder “by omission.”
Later, one juror complained to the judge, saying the charge was confusing and that justice was not served.

“It seemed to me, based on the wording of the charge, that we had no choice but to find her guilty of capital murder. ... I do not believe that Mrs. Overton intended to kill Andrew Burd. I do not believe that Mrs. Overton knew that her actions (or lack thereof) would kill Andrew Burd,” juror Margaret Warfield, a Corpus Christi schoolteacher, wrote in an affidavit.
Overton was given a mandatory life sentence without parole. She's being held at a maximum security prison near Gatesville.

“The justice system has failed me, but God will make me free. I believe God will prove my innocence,” she said in a recent prison interview.

Overton, who grew up wanting to be a missionary, has begun a prison Bible study. Her letters from prison appear regularly on “Free Hannah Overton,” a Web site created by members of her church in Corpus Christi.

Her husband, who also was charged with capital murder, later pleaded no contest to negligent homicide and was given five years' probation.
He comes regularly to visit her in Gatesville, a 650-mile roundtrip from Corpus Christi.
Visits with her five biological children, ages 1 to 9, are less frequent, since they must talk to their mother through thick glass.
“It's very hard. Five children fighting over the phone, crying because they can't kiss mommy,” she said.

According to court pleadings, Andrew was born to an alcohol- and drug-using teen. Eventually, state officials placed him in foster care.
When he was placed for adoption at 4, Andrew had delayed speech, was socially immature, had a huge appetite and ate inappropriate items.

The Overtons, who were looking to adopt, met Andrew at Sunday school at the Calvary Chapel of the Coastlands, a non-denominational evangelical church on the south side of Corpus Christi.
“We were just praying and waiting, you know, to see what child God had for us,” Hannah Overton explained at trial.

Andrew bonded quickly with the family after arriving in the summer of 2006, but it also became obvious he had unanticipated health problems.
“CPS had told us multiple times he was a perfectly healthy child, and we found later he had not been healthy for quite a while,” Overton said.

Most noteworthy was Andrew's obsession with food, described by Overton and other trial witnesses.
“We had to put the cat food in the garage because he would eat it. He would eat toothpaste. We couldn't keep soap in the bathroom because he'd take bites out of it. He broke a glow-stick and tried to drink it,” Overton recalled.

If unwatched, he would forage for food in the refrigerator and pantry, she said.
Shortly before Andrew's death, Overton and her adoption counselor decided to seek professional help for his tendency to eat inappropriate items, a condition known as pica.

Andrew also threw fits, and Overton said his behavior worsened that September after the whole family was in a car wreck in which she was injured. His tantrums now included throwing and smearing feces.

On Oct. 2, 2006, Overton said she served him some chili-like stew spiced with Zatarain's, a seasoning he liked. When Andrew demanded more food, she said she gave him some water in his sippy cup sprinkled with Zatarain's.

Soon after, Andrew became ill, threw up and eventually lost consciousness.
“I think he ate something or multiple things when I was going in and out of the room. I think also his salt levels were high to begin with because he had been acting weird the last couple of days,” she said.
And, she said, the sinister scenario painted at trial by prosecutors is preposterous.
“There's no way anyone could have forced that child to eat anything. He was very stubborn and very strong. And I had just been in an accident. I was still in a lot of pain,” she said.

Overton's husband had come home to help. When the gravity of the situation became apparent, they began driving Andrew to a nearby urgent care clinic. When the child stopped breathing en route, Overton tried to resuscitate him.

At trial, prosecutors questioned why the Overtons didn't call an ambulance to their home.
“I wonder if I had called 911 if things would have turned out differently. I don't think it would have turned out differently for Andrew, but it might have for me,” Overton said during the prison interview.

Dr. Michael Moritz, an expert on salt poisoning, came to Corpus Christi last fall expecting to testify about Andrew's death.
The defense decided not to call him because of scheduling problems, and felt confident with other expert witnesses.

Since then, he has tracked the case from Pittsburgh and finds the outcome troubling.
“You had a runaway prosecution and a crappy defense. It's terrible what happened here. People need to know,” he said.

Moritz said it's obvious Andrew died from eating a very large amount of salt — as opposed to some brain disorder or underlying medical condition — but he doesn't believe it was a forced ingestion.
“He had a huge, abrupt and rapid deterioration. He became violently ill in front of their eyes, and soon thereafter he had arrest. When they checked his sodium, it was among the highest ever recorded in the literature,” he said.
“The question is, how did it happen?” he asked.

Salt poisoning is rare among children of Andrew's age, more commonly occurring in infants or the elderly. Even more rare, said Mortiz, are cases where someone forces a child to eat salt.
“Where's the smoking gun? There is no evidence of force. No salt on the body. No lacerations to his mouth. No salt crystals in his mouth or nose,” he said.
Far more likely, Moritz believes, is that Andrew, who had an eating disorder and fit the profile of other salt-poisoning victims in medical studies, ate the salt himself.
“If you go to the literature, in every single case of alleged salt poisoning, they were kids just like him. Kids who were majorly screwed up, who bounded in and out of foster care, kids who were physically abused, kids with emotional deprivation syndrome,” he said.

“He fit the description. When these kids get in a stressful situation, they eat glass, rocks, dirt, salt. This is a very rare but very specific condition. It's salt pica,” he said.
In contrast, he said, it's very difficult to see the alternative scenario.
“Salt poisoning is a very severe psychopathology on the parent's part. And I met Hannah Overton. I spent time with her. She's a nice, sweet normal lady,” he said.
“To me, accidental voluntary salt poisoning is far more plausible than that this nice lady, this religious do-gooder who took this kid in, suddenly turning into a psychopath and killing this kid.”

When police and child welfare workers rushed to Driscoll Children's Hospital on Oct. 2, 2006, the night Andrew arrived dying of salt poisoning, they were amazed to find members of Overton's church there, praying hand in hand for his recovery.

Since then, members and leaders of Calvary Chapel of the Coastlands have supported the Overton family at every turn, attending court hearings, raising bond money, paying legal fees, helping with child care and praying passionately for justice.

Church members created a Web site with photos, news articles, legal updates and Hannah's letters from prison. The page also includes a list of lies that members believe have been told about her.

Chief among them were claims made in an affidavit by a CPS worker that Overton had admitted forcing Andrew to drink two sippy cups of salty water as punishment, and then “picked him up and beat the (expletive) out of him.”
Although the statement later was disavowed by police, the image was fixed in the public mind.
“I was depicted as a monster, as was my husband, and my church was depicted as a cult,” Overton said.

The church's conspicuous, public support of the Overtons led to friction with police and child welfare workers, prompted public criticism and also caused a few members to drop out, according to Pastor Rod Carver.
“People were accusing us of harboring child murderers. I told the congregation, if we support Hannah we could lose our property, but we won't lose Christ,” said Carver, a California native who keeps a guitar and surfboard in his office and sometimes preaches in flip-flops.

“The surreal thing about this whole thing is that we lost a little boy whom we all loved, and on top of that, we are fighting this great injustice, and we were never able to grieve,” said Carver, who, with his wife, Noreen, also had considered adopting Andrew.

For almost two years, church members have prayed passionately for the Overtons.
“It's still a spiritual battle. We still absolutely believe she will be set free. God has given us promises all along. And ultimately the answer is prayer,” he said.

Now running unopposed for his fifth term as Nueces County district attorney, Carlos Valdez is best known for prosecuting Yolanda Saldivar, the Selena fan who shot and killed the South Texas pop diva in 1995.
“The only case I ever tried,” Valdez remarked with wry sarcasm during a recent interview.

Several assistant DAs prosecuted Overton, but Valdez has no doubts that justice was served with her conviction and sentence of life without parole — harsher even than the punishment for Saldivar, who may be set free in 2025.
“I haven't had a reason to look into it,” he said of the controversial case.
“It's a simple case. The child had a substance in his body,” he said of Andrew.
“He was either killed or he accidentally committed suicide, and I don't think the child did that,” he said.

Valdez said other indications of criminal wrongdoing, including bruises, support the state's theory of child abuse and homicide.
He brushed aside complaints raised by defense lawyers and Overton's supporters of overzealous prosecution and a failure to consider other possibilities for the salt poisoning.
“I've been doing this for 27 years. The defense lawyers try to get the media to put pressure on our office,” he said.

In forceful remarks made on camera last year, Valdez accused Overton of intentionally killing Andrew, but since then his position appears to have softened.
“I don't think he was forced to eat it. I think she put it on something he liked to eat, with the knowledge it would harm him, and with the intent to punish him,” he said.

A former New York prosecutor, the author of books on legal ethics and now a professor at Pace Law School in Philadelphia, Bennett Gershman is a nationally recognized expert on prosecutorial misconduct.
It perhaps was inevitable that he'd be found by supporters of Hannah Overton, who believe local prosecutors used foul play to convict her.

Gershman quickly took an interest in the unusual legal and medical aspects of the case, reviewing various pleadings, including those filed by both sides with the 13th Appellate Court in Nueces County.

“There are really troubling questions about the evidence and whether it's legally sufficient, and about the judge's instructions to the jury,” he concluded.

Most unusual to Gershman was the jury charge that led to her conviction of capital murder “by omission” for allegedly failing to seek proper medical attention.
“I don't know of a case that involves a conviction of murder for failure to provide medical care for a child. It seems to me to be an extremely excessive example of prosecutorial overcharging,” he said.

To the disinterested onlooker, it's not at all clear how Andrew died of salt poisoning.
“I think the death is so unexplained. Was it a homicide? Was it accidental? Or was it a medical anomaly?' he asked.

Gershman said he also was troubled by the non-disclosure by prosecutors of the opinions of Dr. Edgar Cortes, a Corpus Christi doctor who treated Andrew and was listed as a prosecution witness but never testified.

Defense lawyers say Cortes could have cast doubt on allegations of an intent to harm or kill Andrew, and that should have been disclosed. Prosecutors, however, say Cortes had seemed convinced of Overton's culpability all along.

After the verdict and sentencing, an upset Cortes contacted defense attorneys.

The Cortes matter, the jury instructions and complaints of prosecutorial misconduct all are part of an appeal pending with the 13th Court, which likely will be reset oral arguments later this fall.

After reviewing the case, Gershman was left troubled.
“A conviction for capital murder can't rest on such a flimsy, almost incredibly thin reed, as this one rests on. It rests on sand,” he said.