by Dave Eggers
By the time Hannah took the stand, jurors appeared to have made up their minds. Several crossed their arms; others looked away. By that point, they had already been shown numerous photos of Andrew’s small, bruised body postmortem. They had also watched the video of Hess questioning Hannah, during which she described calling a paramedic friend in Oklahoma for guidance when the boy’s condition deteriorated, and even using her camera’s flash to check if his pupils were reactive, but never calling for an ambulance. Sitting in the courtroom, she tried to explain how she had failed to recognize that Andrew’s condition was life-threatening. “I realized that it was something serious . . . a few minutes before we actually took him in,” she testified. Until then, she said, Andrew “was doing nothing that my other kids hadn’t done with the flu . . . There wasn’t anything that I thought was dangerously wrong with him at that point. I didn’t realize the seriousness of the situation.” Eastwood questioned how Andrew had come to have scratches on his neck. “Could it be that you held his nose, held his neck, and made him drink this horrible concoction?” the prosecutor challenged her during a withering cross-examination. “Absolutely not,” Hannah shot back.
Despite Eastwood’s zeal, there were still basic questions that the prosecution could not explain. How had Hannah, who was six months pregnant and recovering from whiplash, managed to overpower Andrew? How had she known how much salt would kill him? And how had she forced him to choke down the lethal slurry through a sippy cup—a drinking container that is, by design, able to release its contents only when sucked on? Yet according to the unusual wording of the jury charge, jurors had to believe just one of two scenarios to find Hannah 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 other words, if the jury could not agree conclusively that she had poisoned Andrew, it could still rule that she was guilty of capital murder “by omission,” or by failure to act.
Gilmore and his defense team, which included two civil attorneys versed in the intricacies of medical testimony, tried to counter the prosecution’s claims that Hannah had poisoned Andrew and purposely delayed medical treatment. (In his 32 years of practicing law, Gilmore told me, he has never run across the charge of “capital murder by omission” before or since.) Melinek, the defense’s expert witness, testified about pica and an array of factors that could have contributed to Andrew’s death, including undiagnosed diabetes. And a succession of witnesses, nearly all of them members of Calvary Chapel, recounted Andrew’s unusual eating habits and Hannah’s attentive parenting. During closing arguments, Gilmore emphasized that Hannah had no motive to kill Andrew and that the state had failed to prove that she had intentionally caused the boy’s death.
But just as the prosecution could not show exactly how Hannah had forced Andrew to ingest a lethal dose of salt, neither could the defense give precise details for how the four-year-old had come to have so much sodium in his body. Prosecutors exploited that uncer tainty in final arguments, asserting that Andrew did not have pica. Throughout the trial, Eastwood had suggested that the Overtons had withheld food as part of a larger pattern of abuse, and as she addressed the jury, she insisted that Andrew had scavenged for food because he was hungry. “The defendant has portrayed herself as a nurturing Christian woman,” Eastwood proclaimed. “Does God want a child to go to bed hurting, in pain, fearful, being looked at by closed-circuit television? Any God, Christian or not, would have wanted a better mother for Andrew.”
The burden on the state to prove its case beyond a reasonable doubt was, Gilmore told me, perhaps less than it should have been. “There was a dead child,” he observed. “The jury was not just going to let her walk.” Capital murder carries two possible punishments in Texas—the death penalty or life without parole—and the district attorney’s office had already decided not to seek death. If convicted, Hannah would receive an automatic life sentence. However, Judge Longoria could allow the jury to consider a lesser charge if he felt that the evidence did not support capital murder, and after hearing the state’s case, he did so, telling both the prosecution and the defense that he was willing to let the jury consider manslaughter or criminally negligent homicide. (Both carry shorter sentences and differ from capital murder on the issue of intent; a motorist who hits and kills someone while driving too fast is often deemed to be criminally negligent in that he did not set out to take a life but was aware of the danger of speeding.) Gilmore urged Hannah more than once to agree to have the jury consider a lesser charge, but she was uneasy with what she perceived as an underlying suggestion of wrongdoing. She could not consent to a lesser charge, she told her attorneys, because she felt it would mean she was admitting fault.
It was a catastrophic decision. After nearly eleven hours of deliberation—during which jurors sent out thirteen notes to the judge, primarily seeking to clarify medical testimony—the jury found her guilty of capital murder. As the verdict was read, Hannah looked horror-struck. Larry, who was sitting behind her, broke down. Before she was led away in handcuffs, the couple embraced for several minutes, overcome with emotion.
But had jurors fully understood the decision they had been asked to make? When Gilmore polled the jury afterward, all twelve members stated that they had found Hannah guilty of capital murder by omission for not acting quickly enough to save Andrew; none believed that she had poisoned him. Yet to find her guilty, they’d had to believe that she knew he would die if she did not get him immediate medical attention. According to juror number three, a high school English teacher named Margaret Warfield, that was not the case. “The jury found that Mrs. Overton failed to procure medical care within a reasonable time frame,” she wrote in an affidavit that was later filed with Hannah’s appeal. “It seemed to me, based upon the wording of the charge, that we had no choice but to find her guilty of capital murder.” But, Warfield added, “I do not believe that Mrs. Overton knew that her actions (or lack thereof) would kill Andrew Byrd [sic]. Although I believe that Mrs. Overton was remiss in seeking timely medical care for Andrew Byrd, I do not believe that she intended or knew that this would result in his death.” The wording of the jury charge, she added, had been “ambiguous and confusing.” Ultimately, Warfield wrote, “I do not feel that justice has been served.”
Two days after Hannah was sentenced to life in prison without the possibility of parole, a pediatrician named Edgar Cortes took the unusual step of contacting Gilmore. The doctor had been the on-call emergency medicine physician at Driscoll the day that Andrew arrived, and he had resuscitated the boy as he was transported to the intensive care unit. Although Cortes had been scheduled to testify for the prosecution, he was never put on the witness stand. (During the third week of the trial, moments before the case was sent to the jury, Eastwood had asked Judge Longoria if she could call Cortes as a rebuttal witness, but the judge, who had grown impatient with the length of the trial, denied her request.) As a frequent witness for the state in child abuse cases, Cortes was not in the habit of reaching out to defense attorneys, but he was so angered by the verdict that he picked up the phone. “I have mitigating testimony that I think would have been very useful to your client,” he said in a voice mail he left for Gilmore. “Please call me at your earliest convenience.”
Unlike the three physicians who had testified for the prosecution, Cortes was the only doctor who had seen Andrew be fore his hospitalization; he had evaluated the boy during a routine checkup when Andrew was three years old and still living with Hamil. “Andrew was not a normal child,” Cortes explained to me. “A colleague of mine who attended the trial told me that the prosecution described Andrew again and again as a normal child, and that is a great distortion of the truth. Andrew was a sweet boy who had significant neurological and developmental disorders. He had a speech disorder called echolalia, which is one of the things we see typically in children who have autism spectrum disorders. He displayed hyperactive behavior and possibly had som
e cognitive delays as well.” The doctor’s assessment of Andrew as developmentally delayed was significant because it dovetailed with Hannah’s testimony. She had told the jury of the boy’s unusual habits—the inappropriate eating, the obsessive picking and scratching, the head banging—but her version of events had been tainted by the specter of abuse.
Cortes believed that Andrew’s death was accidental. “The intentional poisoning of a child is usually perpetrated with sedatives, anticonvulsants, or medications like injectable insulin, not food,” he told me. “The sodium content of Zatarain’s is not listed on its packaging. How do you poison someone with a substance you don’t know the contents of?” That Hannah had not sought immediate medical attention did not change his view. “Benign conditions and life-threatening conditions look the same in the beginning,” he said. “You can ask, ‘Why didn’t she go to the hospital sooner?’ but in hindsight, everything is obvious. If she had taken Andrew to the hospital earlier, what would she have taken him in for? Because he was vomiting? Because he felt cold?” He suspected that as the boy’s condition worsened, Hannah had fallen victim to what he calls “stress blindness,” a phenomenon he had witnessed many times during his 42 years of practicing medicine. “I’ve seen doctors and nurses freeze up when a patient comes in convulsing or in extremis,” he said. “When people are under severe stress, their judgment becomes poor.”
Cortes’s perspective was revelatory. “He would have been witness number one for the defense,” Gilmore told me. “The key issues in this case were knowledge and intent, and his opinion went directly to those issues.” Hannah’s attorneys would later argue on appeal that the doctor’s opinion—that Hannah had never intended for the boy to die—amounted to exculpatory evidence that the state had withheld from the defense. But at a hearing on the defense’s motion for a new trial, Eastwood stated under oath that Cortes had always been a passionate advocate for the prosecution; he had even remarked to her that he thought Hannah should “fry.” Cortes does not dispute that story. “When I first learned Andrew had died, I was angry,” he explained to me. “But I told prosecutors five months before the trial that I believed Hannah had no intent to kill him and that this was not a capital murder case. I was assured that they would be seeking lesser charges.” During the trial, he said, “I sat at the courthouse for five days, waiting to testify. I came in the morning, and I left in the evening. To never have been produced—it was very strange.”
Hannah’s conviction was upheld in 2009 by the Thirteenth Court of Appeals. “It is unclear,” read the court’s ruling, “whether the state actually knew of Dr. Cortes’s opinion.” The court also ruled that the wording of the jury charge was “free from error.” The Texas Court of Criminal Appeals declined the opportunity to reconsider the decision.
Then, in the spring of 2010, Hannah’s appellate attorney, Cynthia Orr, made a startling discovery. Orr—a formidable legal mind whose work recently helped exonerate Michael Morton, a Williamson County man who was wrongly convicted of his wife’s 1986 murder—had begun preparing a writ of habeas corpus, a last-ditch effort to persuade the courts to review Hannah’s case. The writ is the final opportunity a defendant has to introduce new evidence into the record. Looking for any information that might bolster the appeal, Orr requested access to the prosecution’s case file. Sifting through it one afternoon, Orr came across documents she had never seen before, which showed that Andrew’s stomach contents did not have an elevated amount of salt when he arrived at the urgent care clinic. Orr forwarded the paperwork to a leading expert on salt poisoning, Michael Moritz, and asked him to explain its significance.
Moritz is the clinical director of pediatric nephrology at the Children’s Hospital of Pittsburgh, where he specializes in children’s kidney diseases. In 2007 he published a seminal paper on salt poisoning, in which he examined, among other things, documented cases of children who had accidentally ingested excessive quantities of salt.
He found that they 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 pica. Moritz, in fact, had been asked to testify as an expert witness for Hannah’s defense at her trial. After examining Andrew’s medical records, he had determined that the boy’s death was likely accidental. Yet the jury had never heard from him. Short on time as the trial drew to a close, the defense had asked Moritz—who needed to return to Pittsburgh—to sit for a videotaped deposition; when the deposition ran long and could not be completed, the defense was unable to enter it as testimony.
The paperwork Orr now forwarded to him, which showed that Andrew’s stomach contained a great deal of water, only confirmed the clinical director’s initial conclusion. “If someone was trying to murder Andrew, they would have restrained him and prevented him from drinking water,” Moritz subsequently wrote in an affidavit. “The very dilute gastric sodium contents suggest . . . that he had unrestricted access to water.” Given these facts, he explained, “There is not a single piece of evidence which suggests that Hannah Overton salt-poisoned Andrew.” Instead, Moritz added, the most likely scenario was that Andrew “accidentally salt-poisoned himself.”
In light of this information, Moritz felt certain that Andrew’s prognosis would have been the same whether or not Hannah had called an ambulance. “It is unlikely that any intervention would have made a significant difference as Andrew had already taken the most critical step to save himself [by consuming] copious amounts of fluid,” he wrote. The newly discovered documents, Moritz later told me, were “a monumentally important piece of evidence.”
The discovery soon exposed strains among the prosecution team. Former prosecutor Anna Jimenez, who had assisted Eastwood as second chair at Hannah’s trial, subsequently wrote a letter to Orr claiming that a sheaf of medical records that Eastwood had asked her to fax to an expert witness before trial had not included the documents that Orr had uncovered. “I fear she may have purposely withheld evidence that may have been favorable to Hannah Overton’s defense,” Jimenez wrote in her letter, which Orr would include in the writ. She also described her unease with Eastwood’s “trial strategy,” claiming the prosecutor had told her that they would not be calling Cortes because a record in his file indicated that Andrew had behavioral problems. Finally, Jimenez stated, “I do not believe that there was sufficient evidence to indicate that Hannah Overton intentionally killed Andrew Burd.” In response, Eastwood penned an affidavit, asserting that she did not engage in any misconduct. “[I] fully disclosed the DA’s office’s case file to the defense,” she wrote in the lengthy statement. “If I failed in my duties of disclosure before the Hannah Overton trial (which the record corroborates I did not), then so did Ms. Jimenez.”
Orr filed the writ in April 2011, and soon afterward San Antonio Express-News reporter John MacCormack—whose reporting has raised questions about the fairness of Hannah’s conviction—made a routine call to the office to gauge the reaction to the recent developments in the case. He reached Doug Norman, who was part of the prosecution team at Hannah’s trial and who is now responsible for fighting her appeal. (Like Eastwood, neither Norman nor Jimenez would comment for this article.) Norman’s remarks were hardly the stuff of a cocksure prosecutor. “I may harbor doubts, but a jury heard this case and made a decision, and everyone has to respect that decision,” he told the Express-News. “I’ll put it this way. My job requires me to be an advocate for the state. As long as I can make a nonfrivolous argument, I’ll make it, but nothing in my job prevents me from praying for a more just outcome.”
Every Saturday for the past several years, Larry has ridden his motorcycle from Corpus Christi to the Murray Unit, the maximum-security women’s prison west of Waco where Hannah is incarcerated: a squat, concrete building walled off from the world with cyclone fencing and coils of razor wire. He and Hannah are allotted two hours, during which they sit together in the dayroom, flanked by other inmates and their families. Once a month, Larry loads the kids into his
van and they make the trip together, although on those visits, no contact is allowed. Hannah must sit on the opposite side of a metal divider, behind Plexiglas. There are two phones that the kids can speak into, and they eagerly pass the receivers back and forth, recounting the month’s events in stereo. “They get to see her for two hours, once a month—twenty-four hours in a year,” Larry said. He and the kids re turn home the same day so that he can teach Sunday school the next morning. Round-trip, the journey is 632 miles.
That Larry is able to be with the children at all, much less raise them, is “a huge blessing,” he told me. Not long after his arrest, a grand jury upgraded the charges against him to capital murder, and he feared that he too might face life in prison. But after Hannah’s conviction, the DA’s office offered him several plea deals, each of which required him to acknowledge that he had intentionally caused Andrew’s death. Larry turned them down. Finally he agreed to plead no contest to criminally negligent homicide. “The way it was explained to me, that’s how I would be charged if I accidentally ran a stoplight and hit somebody,” he said. “Pleading out to that was much better than having my children grow up without a mother or a father.” In exchange for his plea, Larry was given five years’ probation and a $5,000 fine. (Hannah’s mother and stepfather—whom the courts had named “managing conservators” of the children—were then able to return them to Larry’s custody.) While he was relieved not to have to serve prison time, the discrepancy between his wife’s punishment and his own left him stupefied. “How can one person get probation and another get life without parole for the same thing?” Larry said.