Hannah Overton, a Corpus Christi homemaker and mother of five, was arrested in 2006 after Andrew Burd—a four-year-old foster child whom she and her husband were in the process of adopting—mysteriously died of a rare case of “salt poisoning.” Hannah, who had no previous run-ins with CPS, no prior arrests, and no history of violence, was charged with capital murder. Prosecutors painted a macabre portrait, arguing that she snapped under the demands of parenting and force-fed Andrew a lethal amount of salt. After a sensational trial in 2007, she was convicted and sentenced to life in prison without the possibility of parole.
In the seven years since her conviction, Hannah has maintained her innocence, and she and her legal team have fought to have those claims heard by a higher court. Last Wednesday, Hannah was finally given that chance when the Texas Court of Criminal Appeals held oral arguments to determine if she should receive a new trial—a rare instance of the court taking such a close look at a criminal conviction. Its decision to do so comes in the wake of a number of high-profile DNA exonerations and reflects the court’s growing unease with a system that has produced a startling number of wrongful convictions.
In an article I wrote for Texas Monthly in 2012, I explored the many inconsistencies in the state’s case. Prosecutors had never been able to explain how Hannah—who was six months pregnant and recovering from whiplash at the time of Andrew’s death—had managed to overpower him and force-feed him a large quantity of salt. They had also discounted evidence suggesting that Andrew had an undiagnosed eating disorder that is not uncommon among foster children called “pica,” which involves consuming inappropriate items, like salt. And they were never able to establish a plausible motive. Prosecutors could never explain why—if she had been too overwhelmed by the demands of parenting Andrew—she had not simply terminated the adoption process.
In the years that followed Hannah’s 2007 conviction, her attorney Cynthia Orr, from the San Antonio law firm Goldstein, Goldstein, and Hilley, was able to raise enough questions about Hannah’s conviction that in 2012, the Court of Criminal Appeals ordered that Overton’s claims of innocence be examined by the trial court. The dramatic, six-day evidentiary hearing that followed in Corpus Christi that April laid bare the many problems of the case and suggested that Hannah’s conviction rested on bad science. But Judge Jose Longoria—who presided over both Hannah’s murder trial and the evidentiary hearing, and who has historically sided with the prosecution in this case—was not swayed and recommended against Hannah’s pleas for a new trial.
That might have been the end of the story. Typically, the CCA upholds judges’ findings in evidentiary hearings. But the high court clearly had some remaining questions, and late last year, it ordered that oral arguments be held in its court in Austin this spring.
The CCA operates differently than a district court. Defendants do not attend oral arguments, for example, so Hannah was not present last Wednesday. But a number of her supporters—her husband, Larry; her mother, Lane; her pastor, Rod Carver; and her extended family, friends, and fellow churchgoers—had made the trip from Corpus Christi to be there.
Oral arguments before the high court are fast and contentious. The state and the defense each have twenty minutes to make their case, with the defense speaking first; during that allotted time, the judges may interrupt the lawyers and interrogate them. And that’s it, each case gets a total of just forty minutes. Given the complexity of Hannah’s case, there was scant time to explore the two issues that the court wanted the state and the defense to address: whether Hannah’s attorneys should have done things at trial that they didn’t do, and whether the state had failed to disclose exculpatory evidence.
Orr was only three minutes into her presentation—telling the judges about a container of Andrew’s vomit that had been mislabeled and that Hannah’s defense attorneys had subsequently overlooked—when Judge Cathy Cochran broke in. The vomit, Orr was saying, was the very first fluid that had been collected from Andrew once he began receiving medical attention. “His vomit, collected at Driscoll Urgent Care, was the only unadulterated fluid retained from Andy before medical personnel gave him sodium as part of a routine treatment of course—sodium products like IV drip, epinephrine, sodium bicarbonate, and other measures—” Orr said.
Cochran leaned forward in her chair. “What is so important about that?” she asked.
The fluid, Orr explained, was critically important because it revealed what Andrew had eaten that afternoon. “It showed that what Hannah Overton told the doctors and the police and testified to at trial was the truth,” Orr said.
During Hannah’s 2007 murder trial, she took the stand and gave a thorough accounting of her last day with Andrew. That morning, she said, she and Andrew had watched cartoons in bed. She had dozed off, then awoken a short time later to discover that he had slipped out of the room. She had found him standing on a stool in the pantry, she said, near the baking ingredients, having pulled something off the shelf. She could not recall what he had been holding in his hand, but she assumed that he had eaten something. Later, that afternoon, she had fed him some soup with Zatarain’s Creole Seasoning. After Andrew threw a tantrum wanting more, Hannah—who had been trying to teach him to limit his curiously voracious appetite—resorted to sprinkling some Zatarain’s into a sippy cup of water, hoping the taste would appease him.
Prosecutors contended that it was then—that afternoon, when she handed him his sippy cup—that she forced him to choke down a lethal slurry of Zatarain’s (which is high in sodium) and water. But the defense argued that Andrew must have ingested the fatal amount of salt himself, most likely when he was unattended that morning.
As Orr stood and answered Cochran’s questions, she went on to explain that the vomit collected at the urgent care clinic was low in sodium.
“And what was the significance of that?” pressed Cochran.
The fact that Andrew vomited liquid that was low in sodium when he arrived at the clinic late that afternoon, Orr said, supported Hannah’s story because it suggested that “he ingested [the lethal dose of salt] earlier, on his own.” By the time he reached the clinic, “the sodium that was killing him had already migrated through his body,” Orr said. The vomit showed that “it had left his stomach.” In other words, the scientific evidence, she argued, corroborated what Hannah had told investigators all along: she had never poisoned Andrew with salt.
Nueces County assistant district attorney Doug Norman immediately took issue with Orr’s logic when it came his turn to address the court. The prosecution had never said that Hannah poisoned Andrew immediately before seeking medical care for him, he said. “That was never our theory,” he said. “Our theory was that he was force-fed several hours before. We don’t know exactly when.” The fact that Andrew’s vomit was low in sodium changed nothing, Norman argued. If anything, he said, it bolstered the state’s case.
Remarkably, he distanced himself from the most damaging charge that prosecutors had made against Hannah at her murder trial: that she had pinched Andrew’s nose, gripped him around his neck, and forced a lethal slurry of salt and water down his throat. “Our main theory was that she did nothing,” Norman told the CCA judges. “She stood there and watched him deteriorate for a significant enough period of time that she knew he wouldn’t survive. . . . She sat there and watched her child die from sodium poisoning.”
“Are you saying that she didn’t feed him the salt?” interjected the court’s presiding judge, Sharon Keller.
“Well, no, I’m saying—the gastric contents don’t tell you who fed him the salt,” Norman said.
“Right, but are you saying that she fed him the salt . . . or are you saying that she watched him eat the salt himself and did nothing?” Cochran asked.
“I’m saying however he ingested the sodium, whether she gave it to him, or she didn’t see him take it—” Norman said.
“So are you saying that it doesn’t matter if he ate the salt all by himself?” Cochran asked.
“According to her admissions, there was a significant period of time, approximately one and a half to two hours, when she was aware that he was sick before she took him into the hospital,” Norman said.
“The question was, Are you saying that it doesn’t matter [if she force-fed him the salt or not]?” Keller pressed.
After going back and forth with the judge again, Norman finally answered her question. “I don’t think it matters,” he said.
His answer elicited raised eyebrows from Hannah’s supporters in the courtroom. Technically, Norman was right; according to the unusual wording of the jury charge at Hannah’s trial, jurors had only needed to believe one of two scenarios to find her 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 fact, as the polling of jurors showed after the guilty verdict was handed down, not one of the twelve jurors believed that Hannah had poisoned Andrew, but they had still found her guilty of capital murder “by omission,” or by failure to act.
Still, Norman’s statement was a startling admission from the state. In effect, he had told the state’s highest criminal court that it did not matter if Hannah—who had been indicted and prosecuted for poisoning her son—had actually poisoned him.
Further questioning from Keller, however, was not very sympathetic to the defense. She questioned why it was that Hannah had not acted faster when Andrew’s “pupils were blown and his skin was cold” as he arrived at the urgent care clinic. Though Orr enumerated the many life-saving measures that Hannah had taken to save Andrew, including giving him CPR en route to the clinic, Keller seemed dubious.
Orr was able to respond to Keller’s concerns directly because she had made a strategic decision; she had split her twenty minutes, so that she could speak before and after the prosecution put on its case. As oral arguments drew to a close, she made many powerful points, demonstrating how Hannah’s defense attorneys had botched the chance to put a critical expert witness—the world’s leading expert on pica—on the stand during Hannah’s trial. But forty minutes was not nearly enough time to delve more deeply into the facts of the case.
The judges are now evaluating the evidence that was presented during oral arguments. They may choose to do one of three things: allow Hannah’s conviction to stand, send the case back to Nueces County and order a new trial, or overturn her conviction, which would bring about her release. They have been slow to act in this case, but their decision will most likely come before Election Day this November, when the makeup of the court will change. In the meantime, Hannah, Larry, and their five children—who range in age from fifteen to seven—will wait.