Today marked a turning point in the case of Hannah Overton, the Corpus Christi mother of five who has fought for eight years to prove her innocence. This morning, in a decisive 7-2 ruling, the Texas Court of Criminal Appeals overturned her capital murder conviction. The court stopped short of declaring Hannah actually innocent, but cited “the fundamental unfairness of her trial,” pointing to the ineffective counsel she received when she was prosecuted in 2007.
Hannah 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, she was convicted and sentenced to life in prison without the possibility of parole.
In an article I wrote in 2012, I explored the many inconsistencies in the state’s case. Prosecutors never explained how Hannah—who was six months pregnant and recovering from whiplash at the time—managed to overpower Andrew and force-feed him a large quantity of salt. They discounted evidence suggesting that Andrew had an undiagnosed eating disorder not uncommon among foster children called “pica,” which involves consuming inappropriate items, including salt. And they never established a plausible motive—if Hannah was too overwhelmed by the demands of parenting Andrew, why didn’t she simply terminate the adoption process?
The many problems in Hannah’s case were also investigated by her appellate attorney, Cynthia Orr, and she asked the Court of Criminal Appeals that Hannah’s claims of innocence be re-examined. Orr’s tenacity prevailed; in February 2012, the CCA ordered that an evidentiary hearing be held in Corpus Christi. The dramatic, six-day hearing that followed that April laid bare the many flaws in the state’s case and suggested that Hannah’s conviction rested on both bad lawyering and bad science. But Judge Jose Longoria—who presided over Hannah’s murder trial as well as the evidentiary hearing—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 had some remaining questions, and it ordered that oral arguments be held in its court in Austin. Orr presented her case to the CCA’s nine justices this April, arguing that prosecutors had failed to disclose exculpatory evidence—specifically, a container of Andrew’s vomit that had been gathered by medical personnel on the day that he was hospitalized. (The vomit’s low sodium level corroborated Hannah’s account that Andrew likely ingested the salt on his own, early in the day that he fell ill, while she was napping, and not later in the day, when he was under her watch.) Orr also argued that Hannah’s attorneys had failed to properly represent her when they had failed to put an expert witness on the stand—the world’s leading authority on pica—during her trial.
In the seventeen-page decision handed down today by the CCA, one of the court’s most conservative jurists, Judge Lawrence Meyers, found that Hannah “did receive ineffective assistance of counsel” when her lawyers decided not to put the pica expert, Dr. Michael Moritz, on the stand. Meyers asserted that Dr. Moritz’s testimony would likely have changed the outcome of the trial. As for the question of whether prosecutors withheld key evidence, Meyers demurred, writing, “Because we are granting relief on Applicant’s first claim of ineffective assistance of counsel, there is no need for us to address the second issue of whether the state failed to disclose exculpatory evidence.”
In a concurring opinion, Judge Cathy Cochran went quite a bit further, faulting both Hannah’s defense team (whose disorganization at trial she compared to Abbott and Costello’s “Who’s on First?” routine) and the prosecution. She noted that the lead prosecutor in the case, ex-assistant district attorney Sandra Eastwood, conceded in her testimony during the evidentiary hearing
that, during this 2007 trial, she was an alcoholic who was also taking prescription diet pills that affected her memory. She testified that she is now in recovery and that her “sobriety date is January 20th of 2011.” She was later fired by the District Attorney (who had been the second-chair prosecutor during this trial) for unrelated ethical violations. During the habeas hearing, the prosecutor repeated seventy-two times that she did not recall or did not know the answers to questions concerning the investigation or trial of applicant. She could not remember documents that she had written during the trial and did not recognize her handwriting; she did not remember writing the e-mails that came from her e-mail address, nor receiving other e-mails at that address; she could not remember if she saw any vomit when she previewed the evidence with one of applicant’s counsel before trial, and she did not remember asking the police to have it tested.
The second-chair prosecutor (later appointed as the District Attorney by the Governor) testified that the lead prosecutor told her that “she would do anything it would take to get an advantage over the Defense,” including sending a “spy” to applicant’s church group to learn the defense strategy. The second-chair prosecutor testified that the lead prosecutor was not ethical and was “not truthful.” She said that the lead prosecutor told her that no vomit samples had been saved as evidence. She said that she was “concerned with the fact that [the lead prosecutor] was violating the Court’s orders.”
Cochran then effectively dismantled much of the prosecution’s case by highlighting testimony that two witnesses for the state, Dr. Edgar Cortes and Dr. Judy Melinek, gave during the evidentiary hearing. Though both doctors had originally been prosecution witnesses, they had come to believe—in part based on the newly discovered evidence—that Andrew’s death was accidental.
Nueces County DA Mark Skurka now has to decide how to proceed. He could retry Hannah on capital murder charges, prosecute her on a lesser charge, offer her a plea deal, or dismiss the case. “I’ve got more surprises for them if they want to try to take this to trial,” Orr told me.
In the meantime, Hannah will remain behind bars, and will likely be transferred from the maximum-security Murray Unit in Gatesville to the Nueces County jail, in Corpus Christi, where she will await a bond hearing. Whether or not she will be released on bail, or remain in custody, remains to be seen.
This afternoon, I spoke with her husband, Larry, who has raised their five children on his own during the seven years that Hannah has been incarcerated. Their oldest child, Isaac, is now fifteen. Isabelle, Ally, and Sebastian are thirteen, twelve, and eleven, respectively. And Emma, who was still a baby when Hannah was sent to prison, is now eight. Larry told me that he was overjoyed when he learned of the court’s decision this morning, and that he had immediately driven to his children’s schools to relay the news in person. But as someone who has seen the criminal justice system’s failings up close, he sounded more cautious than elated. “We’re anxious to see what happens next,” he said.
Hannah, he added, did not yet know about the court’s decision. “I’m planning on telling her when she calls me tonight,” he said, of their regularly scheduled Wednesday evening phone call. “The kids and I are going to tell her together. It still hasn’t really sunk in, but I think it will when we hear her reaction.”