Day four of Hannah Overton’s evidentiary hearing got off to an emotional start when attorney David Jones, who was on Hannah’s defense team during her 2007 capital murder trial, broke down and wept on the stand. “I failed miserably,” he said, looking directly at Hannah as he testified. “There’s probably not a day since this verdict that I haven’t–that I don’t regret not spending more time on this case. I should have done more.” He bowed his head as he was overcome with emotion. “I failed, and I am so sorry,” he whispered.
Hannah, who sat behind the defense table in a grey county jail jumpsuit and leg irons, wiped away tears. Judge Jose Longoria called a ten-minute recess so that Jones could compose himself.
Jones had become upset while talking about the decision that he and other defense lawyers had made, in the middle of Hannah’s trial, not to play a videotaped deposition of Dr. Michael Moritz for the jury. Moritz, as you may recall, gave compelling testimony earlier this week which persuasively demonstrated that four-year-old Andrew Burd likely died after consuming a fatal dose of salt on his own, not as the result of being poisoned. But five years ago, the decision about whether or not to use Dr. Moritz had been less clear. A deposition with the doctor had been conducted hastily, mid-trial, because of time constraints; the trial had been running behind schedule, and Moritz–an Orthodox Jew–had to return to Pittsburgh before the Sabbath. Prosecutor Sandra Eastwood had raised so many objections during the deposition that she had effectively run out the clock. The result, Jones said, was testimony that was too muddled to share with the jury. Only after watching the videotape several days ago, in preparation for this week’s evidentiary hearing, did Jones realize just how significant it would have been for a jury to hear what the doctor had had to say.
Yesterday morning, Jones also testified that a sample of Andrew Burd’s gastric contents taken on the day he fell ill–physical evidence critically important to the defense–was never turned over by the prosecution. Nor were handwritten notes and photographs of the gastric contents, or reports stating where and when the sample had been collected. Not having access to that information and the sample itself “significantly changed how this case was tried,” Jones said. “It seems it was purposely withheld because we kept asking for it, and they refused to give it to us.”
But testimony from Arnold Arias, the Corpus Christi police department’s property room supervisor, further confused the matter. Arias indicated that another one of Hannah’s attorneys, Brad Condit, may have photographed the gastric contents while reviewing evidence in the property room. (Nearly an hour of testimony concerned whether or not Condit had simply taken a picture of the brown paper bag that held the container, not realizing its significance, or whether he had taken the container out of the bag. Condit testified yesterday that he did not know the gastric contents existed.) Regardless, the defense argued, the state had a legal and moral duty to turn over the stomach contents; it was not the defense’s responsibility to hunt down physical evidence in the case.
The day ended with testimony from Nueces County medical examiner Ray Fernandez. Careful readers of TEXAS MONTHLY may remember that Fernandez was the subject of a 2004 Gary Cartwright feature story, “Sarita’s Secret,” which plumbed “one of South Texas’s greatest riddles”: whether Fernandez–the grandson of a Mexican maid who worked at the Kenedy Ranch–was actually the descendant of John G. Kenedy Jr. and heir to his vast fortune. (The Texas Supreme Court subsequently denied a request to exhume Kenedy’s body for DNA testing.)
Fernandez stood by his original findings that Andrew was intentionally poisoned with salt and had been the subject of physical abuse. “The bleeding in the brain tissue corresponded to bleeding under the scalp, which I believe was caused by blunt force trauma–not solely from sodium,” he said.
Interestingly, as I explained in my article on Hannah’s case, Fernandez was not allowed to testify during the trial that Andrew had suffered blunt force head trauma because his opinion on the subject did not, according to a pre-trial ruling from Judge Longoria, conform to scientific standards:
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.
In fact, Moritz described in great detail earlier this week how severe salt toxicity causes hemorrhaging under the scalp, “destroying the architecture of the brain.”
After the evidentiary hearing concludes today, Judge Longoria will have thirty days to report his findings to the Texas Court of Criminal Appeals. (He will not make a ruling in the case.) The high court will then review all the material presented at the hearing and do one of three things: allow Hannah’s conviction to stand; order a new trial; or overturn her conviction, in which case she would be freed.
Hannah’s legal team, under the leadership of appellate attorney Cynthia Orr, presented compelling evidence this week that could convince the Court of Criminal Appeals that Hannah should be granted a new trial. Or not. As John MacCormack wrote this morning in the San Antonio Express-News, “Despite a week of often combative examination of more than a dozen witnesses, a clear picture has not emerged. Some of the provocative claims by the defense were borne out, others fizzled.” In other words, what the high court will decide to do is anyone’s guess.