09/21/2008 Murder by omission or conviction by design? John MacCormack - Express-News
Andrew had stopped breathing on the way to the clinic, and blood tests soon showed he was dying of acute salt poisoning. Haller, who had seen him alive and well 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. “And it didn’t make sense. He was still a foster child and they hadn’t officially adopted him. If she was looking for a way out, she could have sent him back,” she said. But she said, Hess, whose wife was then a supervisor for Child Protective Services, brushed off her protests. After taking her statement, he and his partner Detective Mike Ilse left. Haller said she quickly called her longtime friend and neighbor. “I told her, ‘Hannah, they’re coming after you. He’s accusing you,’ ” she recalled. Contacted this 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. Capital murder by omission Less than a year later, on Sept. 12, 2007, Hannah Overton stood awaiting sentencing by District Judge Jose Longoria in the Nueces County Courthouse. A three-week jury trial, complete with live television coverage of the sensational case from the courtroom, 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 to consume strange objects. But, they said, prosecutors had instead taken aim at Overton. “What you’re going to hear is that they targeted Hannah from the very first,” said defense lawyer John Gilmore. “And (they) investigated this case with the specific intent to convict Hannah and overlooked any other possibility.” The prosecution’s version unfolded like a nightmarish tale of an innocent child who found abuse and death at the hands of a wicked adoptive mother. “You’re going to learn about a wonderful, sweet, beautiful little boy named Andrew who was 4 years old. Every child dreams of having two parents that love,” said Assistant District Attorney Sarah Eastwood in her opening remarks. 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,” said Dr. Alexandre Rotta. 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, a creole seasoning. Defense witnesses testified that 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 to save him. The jury deliberated for almost 11 hours before finding her guilty. When polled, the jurors indicated they believed Overton had not acted quickly enough to save him. They found her guilty of capital murder “by omission” according to the unusual wording of the jury charge. Later, one juror complained to the judge, saying the charge was confusing and that justice was not served. “The jury found that Mrs. Overton failed to procure medical care within a reasonable timeframe,” wrote Margaret Warfield, a Corpus Christi schoolteacher, in an affidavit. “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 Andrew. I do not believe that Mrs. Overton knew that her actions (or lack thereof) would kill Andrew Burd,” she added. Overton was given a mandatory life sentence without parole. She’s being held at a maximum security prison near Gatesville, living in a dorm with 102 other women and working in the prison laundry. “The justice system has failed me but God will make me free. I believe God will prove my innocence. I’m amazed at how he has taken care of us so far,” 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, Larry, also charged with capital murder, had pleaded no contest to a charge of negligent homicide and was given five years’ probation. He comes regularly to visit her, making the 650-mile round trip from Corpus Christi on a motorcycle. Visits with her five biological children, aged one to nine, are less frequent and more complicated, as 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. “They think I’m here to help people. They pray every day that God will bring me home.” Cat food and glow-sticks According to court pleadings, Andrew was born to an alcohol and drug using teenager who neglected him and eventually lost custody of him to state officials who placed him in foster care. At age 4, when he was placed for adoption, Andrew had delayed speech, was socially immature, had a huge appetite and sometimes 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 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,” said Overton. 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,” recalled Overton. If unwatched he would forage for food in the refrigerator and pantry. Shortly before his 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 when the whole family was involved in a car accident in which she was injured. His tantrums extended to 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, throwing up and eventually losing 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. Her husband Larry had come home to help out. 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, much was made that the Overtons never summoned 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,” said Overton during the prison interview. Emotional deprivation syndrome 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 because they felt confident with other expert witnesses. Since then he has tracked the case from Pittsburgh, and finds the outcome highly 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 does not 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, also known as hypernatremia, 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, and he does not believe it happened to Andrew. “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. “So how did she do it? Did she force this kid to drink a salt solution? He can run away. He will vomit. Is it impossible? No, but you have to be pretty devious, like mix it in something he likes very much, like a very sweet pudding,” he said. Far more likely, Moritz believes, is that Andrew, who had an eating disorder and fit the profile of other salt-poisoning victims, 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. It takes only a little imagination to picture it, he said, with Andrew in an agitated emotional state, throwing tantrums and being left unsupervised briefly in the kitchen. “He’s an older kid who can feed himself. There’s nothing to say he didn’t dump the whole damn thing of Zatarain or the salt shaker into his drink,” he said. “A normal kid won’t eat it because it’s unpalatable. But this is not a normal kid. He’s having a highly stressful day. He’s a gorger. He’s got pica. And boom. He gorges it and 10 minutes later his brain is starting to shrink,” he said. In contrast, he said, it is 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.” Prayer is the answer 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 the Overton’s church there, praying hand in hand for his recovery. Since then, members and leaders of the church have supported the Overton family at every turn, attending court hearings, raising bond money, paying legal fees, helping with childcare, 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 by a CPS worker in an affidavit that Overton had confessed to forcing Andrew to drink two sippy cups of salty water as punishment, and then “picked him up and beat the shit out of him.” Although the statement was later 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 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, had considered adopting Andrew. For almost two years since Andrew’s death, church members have prayed for the Overtons. On a recent Wednesday night, with Hurricane Ike bearing down on the Texas coast, about 50 people met to sing hymns, share scriptures and again pray for justice. The church meeting came hours after the 13th Court of Appeals in Corpus Christi had postponed hearing oral arguments on the Overton appeal, which had been set for Sept. 11. The case has not been reset, but may be heard sometime in November. Housed in an unpretentious metal building, the unadorned sanctuary holds a small stage beneath a large abstract wall painting of a dove over water. When the guitars fell silent, Carter began speaking to the congregants. “We know Hannah. We know the truth. We know the whole story,” he reminded them. “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. Later, the believers again prayed for their tormentors as well, as Carver named the various prosecutors, police officers and child care workers involved in the Overton case. “We pray for those who have deceitfully used us. We pray for those who have slandered Hannah’s name,” he said. The English trial Some six months before Andrew’s death, an equally controversial case with eerily similar medical and legal dimensions was taking a remarkable turn in an English courtroom. On March 21, 2006, a panel of English judges ruled that Ian and Angela Gay had been wrongly convicted of killing their adoptive son, Christian Blewitt, by force-feeding him at least four teaspoons of salt. Both Gays were serving five-year sentences for the death of Christian, 3, who had been living with them in their Bromsgrove, Worchestershire, home for about a month before collapsing in a coma in December 2002. Like Andrew, Christian was born to a young, drug-using teenage mother. Like Andrew, he had some symptoms of diabetes. And as is alleged by the Overtons about Child Protective Services in Texas, English child welfare officials did not disclose Christian’s history of health problems, according to the Gays. Like Andrew, Christian became sick at home after displaying irritability, thirst and abnormal behavior. And echoing the Overtons’ claims, the English couple say they were slow to realize the child was gravely ill. Instead of calling a doctor, the Gays gave Christian his lunch and put him down for a nap. Only when the child became limp and unresponsive did they rush him to a hospital. As in Andrew’s case, Christian appeared to also have suffered head injuries, and, as in Texas, authorities almost immediately concluded he was a victim of child abuse, placing little stock in the character of the family. The day after Ian Gay brought his son to the hospital, he was arrested, in part apparently because of how he had responded to his son’s illness. “This man pulled out a wallet and said, ‘I’m a police officer, and I’m arresting you for GBH (gross bodily harm) and neglect — the neglect was for not calling an ambulance,’?” Gay later recalled in a newspaper article. After a seven-week trial, the wealthy, professional couple were found guilty of manslaughter in their son’s death, and sentenced to five years, serving 15 months before a new trial was ordered. The conviction had been overturned in 2006 after a medical expert testified that Christian’s death could have been caused by a brain malfunction that allowed his salt levels to rise to a fatal level. “There is nothing in this case that can be explained by salt poisoning that cannot be equally well explained by resetting of the osmostats,” testified Dr. Glynn Walters. At their retrial in the spring of 2007, both Gays were acquitted of all charges. “I don’t think we’ll ever be the same again. I’m not angry, but as I’m beginning to realize what we’ve lost, through no fault of our own, I’m overwhelmingly sad,” said Angela Gay after the acquittal. A simple case Now running unopposed for his fifth term as Nueces County district attorney, Carlos Valdez is best known for prosecuting Yolanda Saldivar, the crazed 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. Along with the various office mementos, including sketches from the Saldivar murder trial in Houston, Valdez keeps a large Bible on his desk. And while Valdez has prosecuted many defendants since then, earning a reputation as a hard-nosed but straight-shooting district attorney, Hannah Overton was not among them. Although that task fell to several assistants, Valdez has no doubts that justice was served with Overton’s capital murder conviction and her 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. A child acts on instincts more than an adult. If it’s bad for them, they’ll spit it out,” 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. “She knew how to punish him. I think the evidence shows she just overdid it.” ‘Extremely excessive example’ A former New York City prosecutor, the author of books on judicial ethics and now a professor at Pace Law School in Philadelphia, Bennett Gershman is a nationally recognized expert on prosecutorial misconduct. It was perhaps inevitable that he would be found by supporters of Hannah Overton, who believe the 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,” is his conclusions. Most unusual was the jury charge that allowed for Overton’s conviction of capital murder even though the jury apparently was not convinced she intended to harm or kill Andrew. Instead, the jury found her guilty of capital murder “by omission” for allegedly failing to act quickly to seek medical help for the ailing child. “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. But, he said, given the peculiar jury instructions, the jury’s verdict was understandable. “I guess the jury came back with a reasonable verdict, based on what the judge told them but I think what the judge told them was confusing,” he said. “If the delay in taking the child to the hospital was the cause of death, then this woman should be held responsible. But what did she have to know, what did she have to intend to make her guilty of capital murder?” he asked. To Gershman, it is 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 was also troubled by the non-disclosure by prosecutors of the opinions of Dr. Edgar Cortes, a Corpus Christi doctor who treated Andrew, and who was listed as a prosecution witness but never testified. Defense lawyers say Cortes could have cast doubt on Overton’s 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 are all part of the appeal pending with the 13th Court. After reviewing the Overton conviction, 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. |
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