Death penalty bid 'uphill struggele' for prosecutors

Prosecutors seeking the death penalty for Texas housewife Andrea Yates, who drowned her five children, would face an uphill battle, legal experts said before today’s punishment phase of the trial.

‘‘Before, it was a much tougher case for the defence,’’ said Dan Shuman, a Southern Methodist University law professor. ‘‘I think now it is a much tougher case for the prosecution.

‘‘The jurors now are operating under no illusions that she is going to be set free.’’

Yates, 37, who drowned her five children in the family bathtub at her Houston home last year was convicted on Tuesday of capital murder.

The jury that found her guilty now has two choices - life in prison or death by injection. Jurors will be asked to answer two questions: Does Yates pose a future danger to society, and are there mitigating circumstances to sentence her to life rather than death?

The jury must be unanimous for Yates to receive the death penalty. If only 10 jurors agree on either of the two issues, she will receive life. Agreement by fewer than 10 will result in a hung jury.

‘‘The choices the jurors are facing now are between executing this woman and sentencing her to a very lengthy term of confinement,’’ Shuman said. ‘‘I would be shocked if it came back capital punishment. ... They have heard all the information about how this woman struggled with mental health problems.’’

Yates was convicted on two capital murder charges in the deaths of seven-year-old Noah, five-year-old John and six-month-old Mary. Charges have not been filed in the deaths of Paul, three, and Luke, two.

Even after rejecting Yates’ insanity defence, jurors might still give substantial weight to her mental history during the penalty phase.

‘‘Their refusal to accept it the first time is not any indication they won’t accept it in sparing her life,’’ said professor James Cohen, of Fordham University’s law school.

Yates’ mental illness could also be used against her as prosecutors argue she could pose a future danger, noted South Texas College of Law professor Neil McCabe.

Defence lawyers were expected to call Yates’ family and friends to testify, as well as additional medical experts.

The state’s expert witness, Dr Park Dietz, might not testify. Prosecutors ‘‘may well simply rely on the acts and say, ‘You can judge for yourself’’,’ Shuman said.

McCabe noted that the state already had acknowledged a major mitigating factor by conceding Yates suffered from a severe mental disease. That will be important for the defence in trying to spare her life, he said.

Yates would have to serve at least 40 years of a life sentence before becoming eligible for parole. If sentenced to die, Yates would become the eighth woman on Texas’ death row.

With 262 executions since 1982, Texas is by far the United States’ most active death penalty state. During the past 20 years, two women have been put to death.

The Yates family lived in a middle-class neighbourhood of brick houses in southeast Houston.