Larry left for work the following morning, and Hannah, who was still in considerable pain from the car accident, gave Andrew and Sebastian breakfast before bringing them into bed with her to watch cartoons. Exhausted from the previous night, she briefly dozed off, then awoke to discover that Andrew had slipped out of the room. She found him standing on a stool in the pantry, near the baking ingredients, having pulled something off the shelf. She could not recall later what, exactly, he had been holding in his hand.
According to Hannah, Andrew once again asked for an early lunch, and once again, when she told him that he would have to wait, he defecated and smeared feces across the floor. Hannah managed to clean him up, but when she reiterated that he would have to wait until lunchtime to eat, he defecated on the floor again. Finally she relented, heating up what she had on hand: leftover vegetable-beef soup flavored with Zatarain’s Creole Seasoning. Shortly after noon, Larry picked her and the boys up and took them to a McDonald’s drive-through, and then the chiropractor, before returning to work. (Andrew was told that he could not have any food at McDonald’s, since he had already eaten.) When Andrew complained of being hungry that afternoon, Hannah gave him more of the leftover soup. When she refused to give him a second helping, he threw a tantrum and shouted, “I hate you!” Finally, Hannah resorted to sprinkling some Zatarain’s into a sippy cup of water, hoping that the taste alone would appease him. After drinking a little, he threw another tantrum that continued unabated for twenty minutes.
Then, abruptly, Andrew grew quiet and stumbled to the floor. “Mommy, I’m cold,” he said, and threw up. Shortly afterward, at three-thirty, Hannah called Larry and asked him to come home since Andrew was vomiting and she needed his help. The boy’s symptoms that afternoon—vomiting, chills, and lethargy—initially suggested to the Overtons that he had a routine ailment, like a stomach bug. But as the afternoon wore on, his symptoms grew troubling; his breathing became congested, and he became less and less responsive. Just after five o’clock, the Overtons put him in their car and rushed him to a nearby urgent care clinic. A block away from the clinic, as they waited at a red light, Andrew stopped breathing. Frantic, Hannah began administering CPR in the backseat. At the clinic, she continued giving him mouth-to-mouth and chest compressions until paramedics took over, but the four-year-old lay motionless. He soon lapsed into a coma.
The next morning, Corpus Christi police detective Michael Hess paid a visit to Kathi Haller, the Overtons’ next-door neighbor, who knew the family well. Like Hannah, Haller homeschooled her children, and the two mothers split teaching duties; the Haller children went to the Overton home for instruction for part of the day and vice versa. The families shared an unofficial open-door policy, and when Andrew had begun acting up the previous afternoon, Hannah had called Haller for help, asking if she could look after Sebastian for a little while. Then, as always, Hannah had been composed, despite the strain she was under. “We had known each other for ten years, and I don’t think I’d ever seen her mad,” Haller told me.
Hess, who investigated child abuse cases for the police force’s family violence unit, had a very different impression of Hannah. The detective had been alerted to Andrew’s grave condition when the boy was transported to a nearby hospital the previous afternoon and, as was protocol, had begun looking into the circumstances surrounding the boy’s unusual and rapid decline. Haller, who took notes documenting her conversation with Hess and later testified about it under oath, recalled the detective’s certainty that Hannah had tried to kill Andrew. According to Haller, he told her, “Look, she’s pregnant and she has all these kids, but it was just too much for her. So she had to find a way out.” (Hess did not respond to interview requests for this article but has previously denied Haller’s version of events.) Haller was stunned by the accusation. “I kept denying that Hannah could do such a thing,” she told me. “Hannah would never harm a child.” Even setting aside her loyalty to her friend, the detective’s theory made no sense to her. “Andrew’s adoption hadn’t been finalized,” Haller said. “If Hannah had been looking for a ‘way out,’ she would have called the adoption agency and told them that she and Larry couldn’t go through with it.” Hess was unmoved. Before he left, Haller recalled his saying, “You might want to prepare for the media.”
Hess’ suspicions had developed the previous evening during an interview with Hannah, who had consented to talk to him without an attorney present. The medical staff at Driscoll Children’s Hospital had determined that Andrew had nearly twice the normal level of sodium in his blood—a highly abnormal finding—as well as bleeding in the brain, and as Hess questioned her, he tried to ascertain what had happened. But Hannah, who was bewildered by Andrew’s condition, had no ready answers. Impatient to return to the boy’s bedside, she gave a hurried, disjointed account of the day that omitted critical details, such as how she had found Andrew in the pantry unattended, and she made only fleeting mention of his unusual eating habits. Hess became exasperated. “I don’t see what caused the trauma to the brain,” he said. “I don’t see what caused the high salt content. That’s what I’m trying to get you to tell me.” With no obvious explanations to consider, he focused his attention on Hannah. “Did you at any time strike him?” Hess asked. “Push him?” Throughout the interrogation, which spanned more than two hours, Hannah insisted that she had never harmed Andrew.
Hannah did describe how she and Larry had at first tried to treat the boy’s symptoms themselves, often volunteering more information than the detective had asked for. When Andrew started “breathing funny,” she told Hess, she had administered asthma medication with a nebulizer, hoping to open up his airways. And when he became “less responsive,” she had pulled out her old EMT books to assess what was wrong. Larry had also tried to rouse him by giving him a warm bath. “I wasn’t thinking, obviously, or I would have just taken him to the hospital,” Hannah told the detective. She had studied years earlier to be an EMT, she explained, and although she had never worked as a paramedic, she had felt confident in her training. “I was just trying to fix it—to do anything I could to fix my baby,” she said. When Andrew’s condition worsened, she and Larry had debated whether to call 911 or go to the nearby urgent care clinic, a concern because Andrew lacked health insurance. (CPS had not yet sent them his Social Security card, which they needed to get him insured.) She and Larry were under tremendous financial strain, she admitted, but she stressed that they had rushed for help as soon as they realized how critical Andrew’s condition was.
Hess remained skeptical of Hannah’s account. “It should be noted that during the entire conversation, Hannah Overton showed almost no emotion,” he later wrote in his police report. In the context of a criminal investigation, the calm that she had always exhibited in the midst of crisis was suddenly a liability—an indication, perhaps, that she was cold-blooded enough to have killed a child.
A pediatric critical care specialist who treated Andrew at Driscoll, Alexandre Rotta, grew equally troubled. EMS records show that the boy was admitted with no more than a bruised knee and sores on his right elbow, but during his hospitalization, other significant black-and-blue marks emerged—in particular, on his trunk and nose. EMTs and hospital staff had vigorously poked and prodded the boy as they attempted to revive him, first at the clinic, then in an ambulance, then at Christus Spohn Hospital, where he was initially taken, and finally at Driscoll, where he was transferred to the intensive care unit. CPR had also been performed for an extended period by Hannah and later by medical personnel, who had squeezed the boy’s nose and administered chest compressions for 35 minutes. But Rotta was alarmed by his overall appearance. “This was not a child that came into the office looking well, with a story of, you know, ‘He’s just a tomboy, and he falls and hits himself,’ ” Rotta would later testify. “This is a child that came in [to the emergency room] in cardiopulmonary arrest and was dying. So it is the context and the totality of the injuries that worried me. . . . I was convinced that we were in the presence of a crime.”
In the eyes of law enforcement, Hannah and Larry were not grieving parents but perpetrators of an appalling crime.
Within hours of Andrew’s arrival at the hospital, the Overtons’ home had been searched, and soon more facts seemed to bolster the notion of abuse. There was Andrew’s bed—just a bare piece of plywood, with no mattress—and a “security camera,” as the baby monitor was later called at trial, trained on it. There were the charred remnants of his Spider-Man sheets in the fire pit. And then there was the abnormally high sodium level, coupled with Hannah’s account of feeding him Creole seasoning after he had misbehaved. Taken together, the disparate details formed a disturbing picture. It did not matter that Haller, who had seen Andrew in the days leading up to his hospitalization and who was frequently in the Overton home, had never observed any suspicious bruises or indications of abuse. In the eyes of law enforcement, Hannah and Larry were not grieving parents but perpetrators of an appalling crime. As Andrew’s condition deteriorated, CPS barred the Overtons from visiting their son. They were not allowed to be at Andrew’s bedside on the evening of October 3, when he experienced massive organ failure. He died at 9:30 p.m.
The death of a child—particu
larly a sudden, unexplained death in which abuse is suspected—evokes strong emotions, even among seasoned investigators, doctors, forensics experts, and prosecutors. A more thorough investigation would have uncovered ample evidence to suggest that Andrew had an undiagnosed eating disorder, raising the possibility that he had unintentionally consumed too much salt on his own. But law enforcement officials are accustomed to handling child abuse cases, not medical mysteries, and salt poisoning is rare enough that most emergency room doctors will never encounter a case during their careers. Against the backdrop of possible abuse, authorities wasted little time. Larry was charged with injury to a child for failing to get Andrew timely medical attention. The onus for the boy’s death fell on Hannah, who was charged with capital murder.
The state’s case would be predicated in part on the findings of Ray Fernandez, the Nueces County medical examiner, who ruled Andrew’s death to be a homicide. Fernandez determined that the boy had died as a result of acute sodium toxicity, with “blunt force head trauma” as a contributing factor. That Andrew had sustained a head injury was based on the presence of a half-inch area of hemorrhaging under the scalp. There was no evidence of external bleeding or injuries to Andrew’s head, however, and at a pre-trial hearing, Fernandez conceded that the hemorrhaging could have been related to elevated sodium in the blood. State district judge Jose Longoria, who would oversee Hannah’s trial the following fall, would later rule Fernandez’s finding of blunt force trauma to be inadmissible because it was not based on sufficient data or reliable methodology. Nevertheless, the idea that Andrew had sustained a head injury propelled the case forward, further casting Hannah as an abuser.
That perception would throw her other children into the investigation as well. During a wide-ranging interview with a social worker to determine if he had ever been abused, Isaac mentioned that he and his siblings had been given pepper, which he described as “spicy stuff,” as a punishment for lying. (A former pastor of Hannah’s had advocated reprimanding children when they were dishonest by putting a single red pepper flake on their tongues.) Given that Hannah was suspected of poisoning Andrew with Creole seasoning, the suggestion that the Overtons had used pepper to discipline their children raised immediate concerns. On October 3, while Andrew was still hospitalized, the agency removed Isaac, Isabel, Ally, and Sebastian from their parents’ custody, placing them in two separate foster homes in Beeville, sixty miles away. The following day, family court judge Carl Lewis awarded temporary custody to Hannah’s mother and stepfather. Larry and Hannah were granted supervised visits. Once reunited with their children—who were terrified by the ordeal—Larry and Hannah had to break the awful news to them about Andrew. Weeping, they told the children that their brother had gone to be with Jesus.
A funeral for Andrew followed at Seaside Memorial Park, alongside Corpus Christi Bay, at which Pastor Rod Carver officiated. He and Noreen had recently lost their own son, who had been stillborn, making his grief particularly acute. As he grasped for the right words to convey the depth of pain a parent feels over the loss of a child, he noticed a row of unfamiliar faces. “Hess and a group of CPS workers were standing in the back with dark glasses on, their arms crossed, scowls on their faces,” Carver said. “That was the most uncomfortable service I have ever done. It was very tense. By that point, Hannah had completely broken down emotionally.”
Corpus Christi’s introduction to Hannah came the following week, when she and Larry were arrested and led past a bank of TV cameras outside the Nueces County jail. News reports that followed, prominently featuring their grim-faced mug shots, cast the Overton home as a house of horrors. (“More shocking details on abuse suffered by four-year-old before death,” began one breathless report.) Veteran defense attorney John Gilmore, whom the Overtons had retained using funds raised by their church, was stunned to learn of the arrests from reporters, who called asking for comment. “Channel Three, Channel Six, Channel Ten, the Caller-Times—they all knew ahead of time,” Gilmore said. “Hess had given me his word that he would tell me if and when warrants were going to be issued, so that Hannah and Larry could turn themselves in.” Instead, law enforcement officials had apprehended the Overtons by making a felony traffic stop, a practice usually reserved for suspects believed to be armed and dangerous. With guns drawn, police officers had surrounded Hannah and Larry’s car as they returned from an errand, forcing them to the ground and handcuffing them. “It was like they were arresting Bonnie and Clyde,” Gilmore said.
The media coverage of the case stirred widespread outrage. The Corpus Christi Caller-Times’s online comments section filled with the vitriol of readers, some of whom called for Hannah to receive the death penalty. (“You can just tell by looking at her how evil she is,” one wrote.) Fueling the public’s antipathy was an affidavit written by a CPS child abuse investigator named Jesse Garcia, who claimed that Hannah had admitted to forcing Andrew to drink two cupfuls of “chili with water” and quoted her as saying that she then “beat the shit out of him.” Garcia never produced any documentation or witnesses to corroborate his claim, and internal police memos show that law enforcement officials doubted the veracity of his story. Hess disavowed Garcia’s account at a court hearing regarding the Overton children, and prosecutors never entered Garcia’s affidavit into evidence or called him to testify at Hannah’s trial. (He was subsequently fired by CPS after having three car accidents on the job in less than six months.) But the damage was done: that Hannah had confessed to force-feeding Andrew and beating him was repeated, uncorrected, on the local news.
Even more devastating to Hannah were the actions that CPS took that January. Days after she gave birth to her daughter Emma, CPS took the newborn into protective custody. At a subsequent family court hearing, in which Hannah’s civil attorney argued that she should be given access to the infant so that she could continue nursing her, Judge Lewis returned Emma to her parents, but with conditions. The Overtons had to remain at the Carvers’ home, where they had been staying to avoid the camera crews that were camped out on their own doorstep, and they were never to be left alone with the baby. Hannah—who had already lost a child and was now living apart from her four older ones—was in a fragile state of mind. “There were days I had to remind her to eat, to brush her teeth, to get out of bed,” Noreen told me.
The Carvers, like most members of Calvary Chapel, never doubted her innocence. “Knowing Hannah, it was inconceivable that she would ever hurt a child,” said Noreen. Hannah’s supporters included a young churchgoer named Dawn Werkhoven, who had lived with the Overtons the year leading up to Andrew’s death. Hannah and Larry had taken her in after her marriage ended in divorce, giving her their extra bedroom while she got back on her feet. “I never saw Hannah be anything but patient and loving with all the kids,” the now-married mother of two told me. Being in the Overtons’ home had afforded Werkhoven an intimate view of the family. Her bedroom was just a few feet away from the children’s rooms, which were always open; their doors had been removed so that the kids could easily come and go as they pleased. The children liked to hang out in her room and talk to her, particularly Andrew, who always visited her for an extra hug before bedtime. “If anything had been wrong, I would have known it,” she insisted. “Would I really have stayed with a family that would abuse a child?”
The most unsettling aspect of The State of Texas v. Hannah Ruth Overton, which got under way in August 2007, was how effectively a woman who had spent most of her life as a do-gooder could be recast as a monster. The particulars of her crime, as sketched out by the prosecution, were vague; assistant district attorney Sandra Eastwood, a passionate child advocate, conceded in opening arguments that she was not sure how Hannah had made Andrew eat so much salt. “We don’t know precisely how she got it down Andrew, but we know that he was very, very obedient,” Eastwood told the jury, standing before the TV news cameras that Judge Longoria had allowed inside the courtroom. “And we do have some evidence of bruising to his nose [which could indicate] his nostrils were squeezed and he was made to drink it.”
Over the course of the three-week-long trial, Eastwood sought to convince jurors that a mother with no history of violence or mental illness had force-fed her child to death—a scenario that each prosecution witness helped, incrementally, to suggest was possible. Patricia Gonzalez, a nurse at the urgent care clinic, told the jury that Hannah had not behaved like a panic-stricken parent and had “had a smile on her face” as she performed CPR on the boy. Another nurse, Dina Zapata, remembered Hannah smirking as she tried to resuscitate him. Both women’s accounts were problematic; Gonzalez had never made a statement to police and was testifying from memory after nearly a year’s worth of negative media coverage, while Zapata had failed to mention anything about Hannah smirking when she wrote her initial report about the incident. Yet the image they conjured—of a woman grinning at the sight of a comatose four-year-old—was devastating. Gemma Mitchell, a phlebotomist, recalled overhearing Hannah tell medical staff that Andrew had stopped breathing after he was “punished.” No one could corroborate her story, and under cross-examination, she admitted that she had never told anyone this fact until taking the stand. Still, the overall impression was a damning one.
Other witnesses testified that they had detected signs of abuse. One paramedic recounted how he had seen two sores on Andrew “that looked to me like cigarette burns because they were round.” Another paramedic also believed the sores were cigarette burns, though he admitted he had only looked at them “from a distance.” Fernandez, the medical examiner, said he had observed “burnlike scarring” on Andrew’s arm that had likely been caused by “contact with a hot surface.” But neither Larry nor Hannah smoked. Not until shortly before closing arguments did jurors hear from the defense’s expert witness, a Harvard-educated pathologist and assistant medical examiner in San Francisco, Judy Melinek, who offered her opinion that the sores were consistent with mosquito bites that had been scratched and picked at.
The prosecution’s most persuasive testimony came from Rotta, the pediatric critical care specialist who had originally expressed concern that Andrew had been mistreated. “A comment someone made was that it appeared that this child had been in a fight with a porcupine,” the physician stated. “There were so many bruises and scratches that it would be difficult to describe them all.” Rotta allowed that the appearance of Andrew’s body may have been due in part to the fact that he was coagulopathic, or not able to clot blood properly, a condition that occurs after a person has gone into cardiac arrest and can cause excessive bleeding and bruising. But he was adamant that the boy’s death had not been accidental. Andrew had never been diagnosed with pica, Rotta reminded jurors. “We have a child that was well until that afternoon, that had behavioral issues, that was having temper tantrums, that was then given something . . . probably to punish his behavior, that then goes into cardiorespiratory arrest.”
Rotta stopped short of describing the manner in which he believed Andrew had been made to eat a lethal amount of salt—a dose that, after analyzing Andrew’s blood, he determined would have consisted of 23 teaspoons of Zatarain’s Creole Seasoning or 6 teaspoons of salt. The physician only said that the scratch marks he had noticed on the boy’s neck had been caused, he believed, by another person. The marks “could be consistent with many things, including a fight, an altercation, someone trying to hold this child’s neck forcefully,” he said.
The burden on the state to prove its case beyond a reasonable doubt was, Gilmore told me, perhaps less than it should have been. “There was a dead child,” he observed. “The jury was not just going to let her walk.”
Andrew’s former foster mother, Sharon Hamil, who was devastated by the boy’s death, testified that Andrew had not exhibited significant developmental or behavioral problems, aside from his speech delay, during the time that he lived with her—a characterization that was rebutted by numerous members of Calvary Chapel later in the trial but that cast Hannah’s credibility into doubt. “He was always happy,” Hamil testified. She believed that Andrew’s eating habits were not the stuff of pathology but those of a growing boy. “Andrew liked to eat every day, all day, any time,” she said.
By the time Hannah took the stand, jurors appeared to have made up their minds. Several crossed their arms; others looked away. By that point, they had already been shown numerous photos of Andrew’s small, bruised body postmortem. They had also watched the video of Hess questioning Hannah, during which she described calling a paramedic friend in Oklahoma for guidance when the boy’s condition deteriorated, and even using her camera’s flash to check if his pupils were reactive, but never calling for an ambulance. Sitting in the courtroom, she tried to explain how she had failed to recognize that Andrew’s condition was life-threatening. “I realized that it was something serious . . . a few minutes before we actually took him in,” she testified. Until then, she said, Andrew “was doing nothing that my other kids hadn’t done with the flu. . . . There wasn’t anything that I thought was dangerously wrong with him at that point. I didn’t realize the seriousness of the situation.” Eastwood questioned how Andrew had come to have scratches on his neck. “Could it be that you held his nose, held his neck, and made him drink this horrible concoction?” the prosecutor challenged her during a withering cross-examination. “Absolutely not,” Hannah shot back.
Despite Eastwood’s zeal, there were still basic questions that the prosecution could not explain. How had Hannah, who was six months pregnant and recovering from whiplash, managed to overpower Andrew? How had she known how much salt would kill him? And how had she forced him to choke down the lethal slurry through a sippy cup—a drinking container that is, by design, able to release its contents only when sucked on? Yet according to the unusual wording of the jury charge, jurors had to believe just one of two scenarios to find Hannah guilty: that she deliberately made Andrew ingest a lethal amount of salt or that she purposely neglected to get timely medical attention, knowing that this would kill him. In other words, if the jury could not agree conclusively that she had poisoned Andrew, it could still rule that she was guilty of capital murder “by omission,” or by failure to act.
Gilmore and his defense team, which included two civil attorneys versed in the intricacies of medical testimony, tried to counter the prosecution’s claims that Hannah had poisoned Andrew and purposely delayed medical treatment. (In his 32 years of practicing law, Gilmore told me, he has never run across the charge of “capital murder by omission” before or since.) Melinek, the defense’s expert witness, testified about pica and an array of factors that could have contributed to Andrew’s death, including undiagnosed diabetes. And a succession of witnesses, nearly all of them members of Calvary Chapel, recounted Andrew’s unusual eating habits and Hannah’s attentive parenting. During closing arguments, Gilmore emphasized that Hannah had no motive to kill Andrew and that the state had failed to prove that she had intentionally caused the boy’s death.
But just as the prosecution could not show exactly how Hannah had forced Andrew to ingest a lethal dose of salt, neither could the defense give precise details for how the four-year-old had come to have so much sodium in his body. Prosecutors exploited that uncertainty in final arguments, asserting that Andrew did not have pica. Throughout the trial, Eastwood had suggested that the Overtons had withheld food as part of a larger pattern of abuse, and as she addressed the jury, she insisted that Andrew had scavenged for food because he was hungry. “The defendant has portrayed herself as a nurturing Christian woman,” Eastwood proclaimed. “Does God want a child to go to bed hurting, in pain, fearful, being looked at by closed-circuit television? Any God, Christian or not, would have wanted a better mother for Andrew.”
The burden on the state to prove its case beyond a reasonable doubt was, Gilmore told me, perhaps less than it should have been. “There was a dead child,” he observed. “The jury was not just going to let her walk.” Capital murder carries two possible punishments in Texas—the death penalty or life without parole—and the district attorney’s office had already decided not to seek death. If convicted, Hannah would receive an automatic life sentence. However, Judge Longoria could allow the jury to consider a lesser charge if he felt that the evidence did not support capital murder, and after hearing the state’s case, he did so, telling both the prosecution and the defense that he was willing to let the jury consider manslaughter or criminally negligent homicide. (Both carry shorter sentences and differ from capital murder on the issue of intent; a motorist who hits and kills someone while driving too fast is often deemed to be criminally negligent in that he did not set out to take a life but was aware of the danger of speeding.) Gilmore urged Hannah more than once to agree to have the jury consider a lesser charge, but she was uneasy with what she perceived as an underlying suggestion of wrongdoing. She could not consent to a lesser charge, she told her attorneys, because she felt it would mean she was admitting fault.
It was a catastrophic decision. After nearly eleven hours of deliberation—during which jurors sent out thirteen notes to the judge, primarily seeking to clarify medical testimony—the jury found her guilty of capital murder. As the verdict was read, Hannah looked horror-struck. Larry, who was sitting behind her, broke down. Before she was led away in handcuffs, the couple embraced for several minutes, overcome with emotion.
But had jurors fully understood the decision they had been asked to make? When Gilmore polled the jury afterward, all twelve members stated that they had found Hannah guilty of capital murder by omission for not acting quickly enough to save Andrew; none believed that she had poisoned him. Yet to find her guilty, they’d had to believe that she knew he would die if she did not get him immediate medical attention. According to juror number three, a high school English teacher named Margaret Warfield, that was not the case. “The jury found that Mrs. Overton failed to procure medical care within a reasonable time frame,” she wrote in an affidavit that was later filed with Hannah’s appeal. “It seemed to me, based upon the wording of the charge, that we had no choice but to find her guilty of capital murder.” But, Warfield added, “I do not believe that Mrs. Overton knew that her actions (or lack thereof) would kill Andrew Byrd [sic]. Although I believe that Mrs. Overton was remiss in seeking timely medical care for Andrew Byrd, I do not believe that she intended or knew that this would result in his death.” The wording of the jury charge, she added, had been “ambiguous and confusing.” Ultimately, Warfield wrote, “I do not feel that justice has been served.”
Two days after Hannah was sentenced to life in prison without the possibility of parole, a pediatrician named Edgar Cortes took the unusual step of contacting Gilmore. The doctor had been the on-call emergency medicine physician at Driscoll the day that Andrew arrived, and he had resuscitated the boy as he was transported to the intensive care unit. Although Cortes had been scheduled to testify for the prosecution, he was never put on the witness stand. (During the third week of the trial, moments before the case was sent to the jury, Eastwood had asked Judge Longoria if she could call Cortes as a rebuttal witness, but the judge, who had grown impatient with the length of the trial, denied her request.) As a frequent witness for the state in child abuse cases, Cortes was not in the habit of reaching out to defense attorneys, but he was so angered by the verdict that he picked up the phone. “I have mitigating testimony that I think would have been very useful to your client,” he said in a voice mail he left for Gilmore. “Please call me at your earliest convenience.”
Unlike the three physicians who had testified for the prosecution, Cortes was the only doctor who had seen Andrew before his hospitalization; he had evaluated the boy during a routine checkup when Andrew was three years old and still living with Hamil. “Andrew was not a normal child,” Cortes explained to me.
“A colleague of mine who attended the trial told me that the prosecution described Andrew again and again as a normal child, and that is a great distortion of the truth. Andrew was a sweet boy who had significant neurological and developmental disorders. He had a speech disorder called echolalia, which is one of the things we see typically in children who have
autism spectrum disorders. He displayed hyperactive behavior and possibly had some cognitive delays as well.” The doctor’s
assessment of Andrew as developmentally delayed was significant because it dovetailed with Hannah’s testimony. She had told the jury of the boy’s unusual habits—the
inappropriate eating, the obsessive picking and scratching, the head banging—but her
version of events had been tainted by the
specter of abuse.
Cortes believed that Andrew’s death was accidental. “The intentional poisoning of a child is usually perpetrated with sedatives, anticonvulsants, or medications like injectable insulin, not food,” he told me. “The sodium content of Zatarain’s is not listed on its packaging. How do you poison someone with a substance you don’t know the contents of?” That Hannah had not sought immediate medical attention did not change his view. “Benign conditions and life-threatening conditions look the same in the beginning,” he said. “You can ask, ‘Why didn’t she go to the hospital sooner?’ but in hindsight, everything is obvious. If she had taken
Andrew to the hospital earlier, what would she have taken him in for? Because he was vomiting? Because he felt cold?” He suspected that as the boy’s condition worsened, Hannah had fallen victim to what he calls “stress blindness,” a phenomenon he had witnessed many times during his 42 years of practicing medicine. “I’ve seen doctors and nurses freeze up when a patient comes in convulsing or in extremis,” he said. “When people are under severe stress, their judgment becomes poor.”
Cortes’s perspective was revelatory. “He would have been witness number one for the defense,” Gilmore told me. “The key issues in this case were knowledge and intent, and his opinion went directly to those issues.” Hannah’s attorneys would later argue on appeal that the doctor’s opinion—that Hannah had never intended for the boy to die—amounted to exculpatory evidence that the state had withheld from the defense. But at a hearing on the defense’s motion for a new trial, Eastwood stated under oath that Cortes had always been a passionate advocate for the prosecution; he had even remarked to her that he thought Hannah should “fry.” Cortes does not dispute that story. “When I first learned Andrew had died, I was angry,” he explained to me. “But I told prosecutors five months before the trial that I believed Hannah had no intent to kill him and that this was not a capital murder case. I was assured that they would be seeking lesser charges.” During the trial, he said, “I sat at the courthouse for five days, waiting to testify. I came in the morning, and I left in the evening. To never have been produced—it was very strange.”
Hannah’s conviction was upheld in 2009 by the Thirteenth Court of Appeals. “It is unclear,” read the court’s ruling, “whether the state actually knew of Dr. Cortes’s opinion.” The court also ruled that the wording of the jury charge was “free from error.” The Texas Court of Criminal Appeals declined the opportunity to reconsider the decision.
Then, in the spring of 2010, Hannah’s appellate attorney, Cynthia Orr, made a startling discovery. Orr—a formidable legal mind whose work recently helped exonerate Michael Morton, a Williamson County man who was wrongly convicted of his wife’s 1986 murder—had begun preparing a writ of habeas corpus, a last-ditch effort to persuade the courts to review Hannah’s case. The writ is the final opportunity a defendant has to introduce new evidence into the record. Looking for any information that might bolster the appeal, Orr requested access to the prosecution’s case file. Sifting through it one afternoon, Orr came across documents she had never seen before, which showed that Andrew’s stomach contents did not have an elevated amount of salt when he arrived at the urgent care clinic. Orr forwarded the paperwork to a leading expert on salt poisoning, Michael Moritz, and asked him to explain its significance.
Moritz is the clinical director of pediatric nephrology at the Children’s Hospital of Pittsburgh, where he specializes in children’s kidney diseases. In 2007 he published a seminal paper on salt poisoning, in which he examined, among other things, documented cases of children who had accidentally ingested excessive quantities of salt. He found that they fit a narrow profile: they were between the ages of one and six, they had been in the foster system or were from abusive homes, and they had pica. Moritz, in fact, had been asked to testify as an expert witness for Hannah’s defense at her trial. After examining Andrew’s medical records, he had determined that the boy’s death was likely accidental. Yet the jury had never heard from him. Short on time as the trial drew to a close, the defense had asked Moritz—who needed to return to Pittsburgh—to sit for a videotaped deposition; when the deposition ran long and could not be completed, the defense was unable to enter it as testimony.
The paperwork Orr now forwarded to him, which showed that Andrew’s stomach contained a great deal of water, only confirmed the clinical director’s initial conclusion. “If someone was trying to murder Andrew, they would have restrained him and prevented him from drinking water,” Moritz subsequently wrote in an affidavit. “The very dilute gastric sodium contents suggest . . . that he had unrestricted access to water.” Given these facts, he explained, “There is not a single piece of evidence which suggests that Hannah Overton salt-poisoned Andrew.” Instead, Moritz added, the most likely scenario was that Andrew “accidentally salt-poisoned himself.”
In light of this information, Moritz felt certain that Andrew’s prognosis would have been the same whether or not Hannah had called an ambulance. “It is unlikely that any intervention would have made a significant difference as Andrew had already taken the most critical step to save himself [by consuming] copious amounts of fluid,” he wrote. The newly discovered documents, Moritz later told me, were “a monumentally important piece of evidence.”
The discovery soon exposed strains among the prosecution team. Former prosecutor Anna Jimenez, who had assisted Eastwood as second chair at Hannah’s trial, subsequently wrote a letter to Orr claiming that a sheaf of medical records that Eastwood had asked her to fax to an expert witness before trial had not included the documents that Orr had uncovered. “I fear she may have purposely withheld evidence that may have been favorable to Hannah Overton’s defense,” Jimenez wrote in her letter, which Orr would include in the writ. She also described her unease with Eastwood’s “trial strategy,” claiming the prosecutor had told her that they would not be calling Cortes because a record in his file indicated that Andrew had behavioral problems. Finally, Jimenez stated, “I do not believe that there was sufficient evidence to indicate that Hannah Overton intentionally killed Andrew Burd.” In response, Eastwood penned an affidavit, asserting that she did not engage in any misconduct. “[I] fully disclosed the DA’s office’s case file to the defense,” she wrote in the lengthy statement. “If I failed in my duties of disclosure before the Hannah Overton trial (which the record corroborates I did not), then so did Ms. Jimenez.”
Orr filed the writ in April 2011, and soon afterward San Antonio Express-News reporter John MacCormack—whose reporting has raised questions about the fairness of Hannah’s conviction—made a routine call to the office to gauge the reaction to the recent developments in the case. He reached Doug Norman, who was part of the prosecution team at Hannah’s trial and who is now responsible for fighting her appeal. (Like Eastwood, neither Norman nor Jimenez would comment for this article.) Norman’s remarks were hardly the stuff of a cocksure prosecutor. “I may harbor doubts, but a jury heard this case and made a decision, and everyone has to respect that decision,” he told the Express-News. “I’ll put it this way. My job requires me to be an advocate for the state. As long as I can make a nonfrivolous argument, I’ll make it, but nothing in my job prevents me from praying for a more just outcome.”