On October 2, 2006, four-year-old foster child Andrew Burd was brought to a Corpus Christi urgent care clinic in cardiac arrest. He had fallen suddenly and acutely ill that afternoon. His soon-to-be adoptive mother, Hannah Overton, had frantically administered CPR, and medical personnel tried to revive him, but it was too late—Andrew soon lapsed into a coma. During the next 24 hours, bruises emerged on his body, and his brain began to hemorrhage. The following evening, shortly after nine o’clock, he died. Blood tests revealed that he had an unusually high amount of sodium in his blood—so high, in fact, that doctors were able to determine that his death had been caused by ingesting an excessive amount of salt.
Investigators quickly zeroed in on Hannah, who had been with Andrew when he fell ill. The bruises were seen as evidence of abuse, the hemorrhaging as proof of a head injury, and the elevated blood sodium as the result of deliberate poisoning. The churchgoing mother of five—who had no history of abuse or violence and no previous arrests—was charged with capital murder. Prosecutors argued that she had snapped under the demands of parenting and forced Andrew to eat a large quantity of salt. Hannah insisted that she had not poisoned the boy and refused all plea deals. After a sensational trial the following year, she was convicted and sentenced to life in prison without the possibility of parole.
Extensive and often inaccurate local media coverage pilloried Hannah before and during her trial. Four years later, when she submitted a writ of habeas corpus—a last-ditch effort to persuade the courts to review her claims of innocence—the case remained divisive. Nueces County district judge Jose Longoria, who oversaw her 2007 trial, immediately ruled that the application for the writ was “without merit.” Yet questions about her conviction persisted. Her appellate attorney, Cynthia Orr, had found evidence that challenged many of the state’s assumptions at trial, and additional evidence suggested that Andrew had suffered from an undiagnosed eating disorder called pica, which is characterized by a desire to consume inappropriate items with little or no nutritional value, like salt. (An article I wrote in the January issue of TEXAS MONTHLY examined the case extensively.)
Then, in February of this year, the Texas Court of Criminal Appeals handed down an unexpected ruling, ordering that Hannah’s claims of innocence be examined. The decision came in the wake of a number of high-profile DNA exonerations and reflected the court’s growing unease with the capriciousness of scientific opinion in the courtroom. In a rebuke to Judge Longoria, the court ordered him to hold an evidentiary hearing, at which the defense would be allowed to present new evidence. In a rare written statement, Judge Cathy Cochran asserted that “the judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence—scientific evidence that will hold up under later scrutiny.”
The hearing got under way on April 23 in the same Corpus Christi courtroom where Hannah stood trial five years earlier. As at the original proceedings, she sat quietly at the defense table, only this time she wore a gray county jail jumpsuit and was constrained by leg irons. She occasionally scribbled notes on a yellow legal pad as an overflow crowd of reporters and supporters—mostly members of her church, Calvary Chapel of the Coastlands—filled the benches behind her. Her husband, Larry, who has been raising their children by himself, leaned forward so as not to miss a word.
Moments before the hearing began, Hannah wiped away tears with a white handkerchief. She was flanked by a formidable new team of lawyers, led by Orr, a San Antonio criminal defense attorney who in 2001 obtained the first confession of error by the State of Texas in a death penalty case. Orr was joined by the legendary Gerry Goldstein, who has represented clients as diverse as Hunter S. Thompson and Manuel Noriega, and by John Raley, of the Houston firm Raley & Bowick, whose 6-year battle with the Williamson County district attorney’s office over DNA testing resulted in the recent exoneration of Michael Morton after nearly 25 years behind bars for murder. All three attorneys took the case pro bono. “I’ve never met anyone less capable of harming a child,” Raley told me.
Although Hannah’s trial had drawn tremendous local media attention, the hearing—which was slated to explore the arcane science of salt poisoning—was expected to be short and soporific. But as testimony stretched into a second week, Hannah’s fate dominated local TV news broadcasts. The proceedings became increasingly dramatic, punctuated by revelations about everything from missing evidence to lead prosecutor Sandra Eastwood’s personal life and at one point devolving into a shouting match. David Jones, a lawyer who had served on Hannah’s original team, wept on the stand as he confessed that he had done an inadequate job of representing her. “I failed miserably,” he said, looking at Hannah, who struggled to keep her composure. “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.” He bowed his head as he was overcome with emotion. “I failed, and I am so sorry,” he whispered.
When Hannah was tried for capital murder, the state needed to prove one of two scenarios to win a conviction: that Hannah had deliberately made Andrew ingest a lethal amount of salt or that she had purposely neglected to get him timely medical attention when he became ill, knowing that this would kill him. In an evidentiary hearing, the burden of proof rests on the defense, and so Hannah’s attorneys now sought to have her conviction overturned by demonstrating three points: that the medical opinions on which her conviction rested were incorrect; that critical, and potentially exculpatory, evidence had been withheld from the defense, depriving her of a fair trial; and that her previous lawyers had not provided her with effective representation. Prosecutors Doug Norman and Bill Ainsworth quickly pushed back, arguing that the supposedly withheld evidence had been available to Hannah’s defense and that she had been represented by seven able attorneys. They told Judge Longoria that what he would learn about salt poisoning was nothing new. “There’s very little that this court will hear that wasn’t heard at trial,” cautioned Norman at the outset.
Yet within days, the hearing unveiled troubling new information. Perhaps the most important element of the defense’s case concerned a sample of Andrew’s vomit, taken at the clinic where the Overtons had brought him when his breathing became labored. Hannah’s lawyers argued that the sample was never turned over by the prosecution, nor were some notes about the sample, photographs that documented its existence, and reports stating where and when it had been collected. (Orr discovered reports about the vomit in 2010, when she began reviewing the DA’s research file in preparation for Hannah’s writ.) Not having access to that evidence “significantly changed how this case was tried,” testified Jones, the lawyer who wept on the stand. “It seems it was purposely withheld, because we kept asking for it and they refused to give it to us.” Chris Pinedo, who had also served on Hannah’s original defense team, claimed that the defense had requested the sample so that testing could be conducted on it, but “we were told it did not exist.”
Forensic pathologist Judy Melinek, an assistant medical examiner in San Francisco who had testified at Hannah’s trial, then took the stand to explain how critical this sample would have been to understanding exactly what had happened to Andrew. Determining the precise makeup of his stomach contents and the time they were collected, she said, would have been pivotal in a case in which the defendant was accused of poisoning the victim. After reviewing all the evidence, Melinek said, she firmly believed that Andrew had ingested a fatal amount of salt on his own. Her opinion was bolstered by the testimony of Edgar Cortes, an emergency medicine pediatrician who had seen Andrew twice before his death. Cortes maintained that he had informed Eastwood prior to trial that the boy had suffered from significant cognitive delays. These delays, Cortes now testified, put Andrew at greater risk for eating inappropriate items and ingesting something lethal. Yet Andrew was portrayed during the trial as a normal four-year-old. As for why the jury never heard his medical opinion, Cortes stated, “I felt like the prosecution had its own theory about what happened.”
The most compelling scientific testimony, however, came from Michael Moritz, the clinical director of pediatric nephrology at the Children’s Hospital of Pittsburgh and one of the world’s leading authorities on salt poisoning. Moritz had been scheduled to testify on Hannah’s behalf at her trial but was never called—a decision cited by her new defense team as proof that she had not been ably represented. Now, at the hearing, Moritz testified that Andrew had likely consumed the lethal amount of salt while briefly unsupervised. (Indeed, Hannah testified in 2007 that she had discovered Andrew standing on a stool in the pantry on the same day he was hospitalized and that he had been reaching for the spice rack, though she was unable to remember what, exactly, she had taken from his hands.) That scenario, Moritz said, was far more plausible than one in which Andrew was forcibly fed salt. “The reports in the literature do not show a loving parent who takes in a foster child, who wants to do well, and for no apparent reason salt-poisons the child, with no evidence of struggle,” he said. Several members of Calvary Chapel nodded in unison as Moritz stated that he did not think Hannah—who admitted to giving Andrew “a sprinkling” of salty seasoning in a sippy cup of water to appease him after he threw a tantrum begging for more lunch—had committed a crime.
Intentional salt poisoning, the doctor went on to explain, is extremely rare. When it does occur, the victims are often bottle-fed babies whose food supply can be easily tampered with. Moritz stated that there was only one documented case in which an older child—a five-year-old—was poisoned with salt, and there were obvious signs of a struggle, including lacerations to his lips and gums. Yet Andrew had no such lacerations. Typically, Moritz added, someone who salt-poisons a child is mentally ill or a drug addict and has a well-documented history of child abuse. “So what we’re seeing in this case does not fit with any cases of intentional salt poisoning in the literature,” Moritz said.
Judge Longoria periodically glanced down at the doctor when he spoke of children poisoning themselves, studying him with skepticism. Moritz described how “voluntary salt intoxication” almost uniformly happened to children who 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 some form of eating disorder, such as pica. Andrew, who had tried to eat everything from cigarette butts to glow sticks to toothpaste, fit this profile well.
The jury at Hannah’s trial had found that she had “knowingly or intentionally” caused Andrew’s death by failing to render aid quickly enough—that is, that she recognized what grave danger he was in, knew he was going to die, and deliberately acted too slowly to save him. But Moritz pointed out that the initial flu-like symptoms that manifest themselves after eating a fatal dose of salt would not have caused grave concern. The medical personnel who saw Andrew on the day he entered the hospital were slow to diagnose him—so slow, in fact, that they had administered “hypertonic saline solution and three rounds of sodium bicarbonate,” Moritz said, as they tried to revive him. In other words, they had introduced additional sodium into his system. If they had been unable to recognize that he was suffering from fatal sodium toxicity, Moritz posited, how could Hannah have done so?
On the third day of the hearing, the gallery of spectators fell quiet as Eastwood entered the courtroom. The former prosecutor had unsuccessfully fought against the subpoena that compelled her to testify that day, and she appeared ill at ease as she took the stand. Though she had aggressively pursued capital murder charges against Hannah, commanding the same courtroom just a few years earlier with a macabre tale of maternal depravity, she now appeared fragile, flustered, and, at times, near tears. (Eastwood was dismissed from the DA’s office two years ago, though the reason for her termination was not publicly disclosed.) Goldstein questioned her about whether she had abused prescription diet pills during the trial, prompting Eastwood’s attorney to shout over him, but she later admitted to using them and confessed that she was a recovering alcoholic with a little more than a year’s sobriety. Her memory of the trial was cloudy, she said, but she stated that she had turned over all the evidence she had to the defense.
Under withering questioning from Goldstein, Eastwood answered “I don’t know” or “I don’t remember” 72 times when asked whether she recognized notes written in her handwriting, emails sent from her own account, and papers signed with her signature. “I have trouble remembering phone numbers,” she said. “I have trouble remembering what I had for lunch yesterday. I think that’s normal. I had hundreds of conversations and there were thousands of documents, so I don’t remember specifics.”
Goldstein became so exasperated with her that he asked if she remembered the trial itself. “You recall the trial, do you not?” he said. “The individual got life in prison.”
“The question is . . . ?” said Eastwood.
“Do you remember the trial?” Goldstein asked, his voice rising.
“Yes,” she replied.
“It ended in life without parole,” Goldstein scolded. “That means they spend the rest of their life in prison. You remember cases that have those kinds of consequences, don’t you?”
“Yes,” she said softly.
From the defense table, Hannah shook her head slightly as she listened.
Eastwood was followed by ex-prosecutor Anna Jimenez, who had assisted her as “second chair” at Hannah’s trial. (As the Nueces County DA, Jimenez later terminated Eastwood.) Jimenez did not mince words. “She is not truthful,” she said of Eastwood. She recounted how Eastwood had allegedly told her, “I will do anything to win this case,” and had sent someone to spy on members of Hannah’s church in an effort to uncover what sort of defense strategy would be used at trial.
Most significantly, Jimenez said, Eastwood had informed her that no vomit existed for testing. But the vomit, as well as the accompanying notes, photos, and police reports that documented its existence, constituted “Brady evidence,” Jimenez went on to say—exculpatory or mitigating evidence that the prosecution is required, by law, to hand over to the defense. “The state should have given this information,” she said. “We should have turned this over.” Under cross-examination, Jimenez conceded that she did not have conclusive proof that Eastwood had intentionally withheld anything. But, she added, “it’s like any other criminal issue when there’s circumstantial evidence. We prove cases in court every day on this same kind of evidence.”
As the hearing wound to a close, the state summoned medical examiner Ray Fernandez to the stand. Fernandez stood by his original findings that Andrew was poisoned, but during nearly four hours of cross-examination by Raley, he made several significant revisions of his position. Fernandez admitted that he had not consulted with a pediatric kidney specialist in determining that Andrew’s death was a homicide and that Andrew’s death was the only fatal case of sodium toxicity that he had ever encountered. He agreed that the hemorrhaging in Andrew’s brain had probably been caused by salt toxicity and that blunt force trauma had not been a contributing factor, as he had initially ruled it to be. Fernandez also acknowledged that the extensive bruising found on Andrew’s body was likely due to coagulopathy, a side effect of sodium in the blood. He agreed to review Moritz’s scholarship on salt poisoning and take it into consideration, along with any other defense evidence.
The hearing, which lasted six days, went longer than anyone had expected. During closing arguments, Raley sketched out how Andrew had likely eaten a fatal amount of sodium while unattended and how once the toxic load was in his system, it was too late—a fact supported by Moritz’s testimony. No amount of medical intervention, he explained, would have made a difference, and yet “she was fighting with all that she had, all that she knew how, to save his life,” he said, referring to Hannah’s administering of CPR. “Is that consistent with the kind of person that would intentionally kill someone?” Raley went further than asking that Hannah be granted a new trial. He made an impassioned plea for her release. “We request—we pray—that your Honor consider this new scientific evidence and recommend to the Court of Criminal Appeals that Hannah be declared actually innocent,” he said, addressing Judge Longoria.
Prosecutors, for their part, hammered home the idea that the defense had not come up with any information that was a “game changer.” Ainsworth argued that the sample of vomit was not a critical piece of evidence because Fernandez had stated that it was the sodium level in Andrew’s blood, not his stomach contents, that had been key in determining salt poisoning.
At the close of the hearing, Hannah embraced her attorneys, then locked eyes with her husband before breaking down in tears as she was led away.
Judge Longoria must submit his recommendations to the Court of Criminal Appeals by June 7. (He will not make a ruling in the case.) The court will then review 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, which would bring about her release. Orr told me that her commitment to Hannah, whom she has represented for five years, will not end until her client is out of prison. If Hannah is granted a new trial, her current legal team will try the case—a fact sure to give the DA’s office pause. “Gerry Goldstein, John Raley, and I are going to see this case through to the end,” Orr said. “We are firmly convinced of Hannah’s actual innocence.”