Andrea Yates’ Prosecutors Used the Death Penalty as a Trial Tactic

The prosecutors in the Andrea Yates case never really expected, nor even wanted, the jury to return a death sentence. They manipulated the death penalty processing order to get a pro-prosecution jury, one more likely to reject the insanity defense and return a verdict of guilt.

This tactic, well known to those who practice criminal law, is becoming more widespread in states that authorize the death penalty. In most cases, this tactic is more difficult to detect and expose than it is in the Yates case. Here, one of the prosecutors practically invited the jury not to return a death sentence. It was either the most under-zealous prosecutor I have ever come across or he knew exactly what he was doing. The latter seems more likely.

The prosecutors knew that if Yates got the death penalty, her case--including the merits of the conviction--would probably be examined more scrupulously by the appellate courts. They also knew that a death sentence would be controversial and would lead to criticism. What they wanted was the certainty of conviction of first-degree murder without the burdens of defending a death sentence. They got exactly what they wanted and had planned for.

These actions are highly questionable. By representing to the court that they were seeking the death penalty, if they in fact were not really doing so, they may have manipulated the system.

Why would they, and so many other prosecutors, engage in this charade? The answer is that legislatures and courts have implicitly invited them to do so by establishing rules that permit prosecutors to secure more favorable juries if they seek the death penalty.

In cases in which the prosecutors are asking for the death penalty they have the right to challenge for cause any juror who would be unwilling to impose this ultimate sentence. This ensures the prosecution a skewed jury consisting exclusively of citizens who favor the death penalty and assuring the absence of any jurors who oppose it.

How one stands on the death penalty may be relevant if the prosecutor is actually seeking to have that penalty imposed. But if the purpose of seeking it is simply to get a more law-and-order, pro-prosecution jury, then the practice is reprehensible. Yet the courts have generally refused to look behind the prosecutors’ claim that they are, in good faith, seeking the death penalty.

In 1968, I brought this issue to the U.S. Supreme Court in a murder case arising in California. The high court granted review, but then decided to duck this issue, leaving it for another day. Nearly 35 years later that day still has not arrived, and prosecutors have learned how to play the system for maximum success.

It is difficult to prove in most cases that a prosecutor was seeking the death penalty in order to get a favorable jury on the guilt phase of the case. Some prosecutors are truly ambivalent. But there are cases in which this ploy is carefully considered and even discussed in advance with superiors.

I do not know whether that happened in the Yates case, but it seems unlikely that anything happened between the time the prosecutors said they were seeking the death penalty before trial and their decision not to press for it aggressively during the sentencing phase. If anything, the jury’s short deliberation during the guilt phase should have encouraged them to push aggressively for what they had said they were seeking.

The conduct of the prosecutors in this case should be examined, and defense attorneys should raise this issue on appeal. Perhaps the courts finally will declare this practice unethical, even unconstitutional. Even if the courts decline to consider this issue, ethical prosecutors should refuse to engage in it because it is unfair to defendants and distorts the fact-finding function of the jury.

The Yates case is a perfect case for the courts to use as a vehicle to expose this scandal.