THE WRONGFUL CONVICTION OF HANNAH OVERTON

BACKGROUND:

 

Hannah Overton was found guilty of capital murder "by omission," also referred to as "failure to act" – by delaying in seeking medical attention for Andrew Burd, the four year old boy that she and her husband Larry were adopting from the foster system. Andrew died from hypernatremia, or sodium intoxication, commonly called "salt

poisoning."   His first symptom was vomiting, then chills.  Hannah

initially treated the symptoms, not aware of what was wrong.

 

Hypernatremia is extremely difficult to diagnose, virtually impossible to treat once it reaches a threshold point, and takes about an hour and a half before the symptoms fully manifest.  That's exactly the amount of time it was before Hannah and her husband Larry arrived with Andrew at the nearest Urgent Care clinic, having driven him there

because they feared an ambulance would take too long.   Medical staff

at the 2nd hospital where he was taken had to run lab tests to get an accurate diagnosis of his condition.

 

Prosecutors asked the jury to find Hannah guilty of intentionally poisoning Andrew.  The jury instructions and charge also gave them the option to find her guilty of omission – of delaying seeking medical help – without specifying that they believed that she intended or even knew that a delay would cause him harm.  Hannah's defense attorneys objected to the latter charge, but the judge allowed it to stand.  A poll of all 12 jurors revealed that all found her guilty of "omission," but not of poisoning Andrew.  The jury was not aware of the mandatory sentence for capital murder – which in Texas is either execution or life without parole.  She received the latter sentence.

She awaits her appeal.  Oral arguments are scheduled for Sept 11, 2008.

 

KEY POINTS:

 

1.      THERE WAS NO CRIME COMMITTED.  There was insufficient evidence

to substantiate the medical examiner's ruling of the manner of death as homicide.  Dr. Judy Melenik, an expert witness, testified that there was no way to make that determination based on the tests and examination done during Andrew's hurried autopsy.  Andrew's death was a tragic accident, and was most likely due to the combination of undiagnosed diabetes, which caused his body to retain sodium, combined with foods or other substances that he ingested on his own that were high in sodium.  The autopsy was so incomplete that we may never know the whole truth. Further, Texas law does not provide for capital murder by omission or failure to act.  .

 

2.      POLICE & INVESTIGATIONAL MISCONDUCT (Note:  This factor cited

in almost 40% of the first 74 cases of wrongful convictions from The Innocence Project per the book "Actual Innocence.")

 

1.      Presupposed Guilt & Conflict of Interest   Detective Michael

Hess' investigation of  the case presupposed Hannah's guilt, as evidenced by the manner of his interrogation of Hannah, by his behavior with her neighbor,  with the pastor who presided over Andrew's memorial service, and by his presence at the autopsy with his

police report in hand.   Additionally, approximately the last hour of

Hess' interrogation of Hannah is missing from the taped interrogation.

 Hess' wife was, at the time, a CPS supervisor.  Hess was suspended from duty for 3 months for improper behavior in another, unrelated

case.   (Note:  Justice On Trial cites the assumption of guilt rather

than the constitutionally-guaranteed "innocent until proven guilty"

assumption as a Key Concept in wrongful convictions.)

 

2.      False CPS Affadavit.  CPS filed an affidavit early in the

investigation, stating that Hannah had confessed to beating Andrew and to giving him spices as punishment.  This same affidavit reports that the Overton children reported abuse.  The information was widely reported in the media.  At a family court hearing, with media present, the supposed confession and other statements in the affidavit were proven to have no basis in fact.  Detective Hess, who interrogated Hannah, testified under oath that he did not know the source of the

information and could not confirm it.   The person who signed the

affidavit, Jesse Q. Garcia, was never brought to court, never asked to

testify.   He no longer works for CPS.  There was no media coverage of

the fact that Hess' testimony refuted the affidavit.  Shortly after the family court hearing, the media stopped reporting the entire story, but all subsequent stories inaccurately referred to Hannah giving Andrew spices as punishment and waiting for three hours to seek

medical help as though those were established facts.   (Note:  Justice

On Trial cites false or misleading evidence, including affidavits, as a Key Concept in wrongful convictions.)

 

3.      CPS withdrew from the case, after multiple allegations of

child abuse were thrown out.  After a long list of over 20 false accusations of child abuse were disproven, CPS withdrew from the case.

 As Clint Rainey wrote in World Magazine:  "The agency stood to benefit from an evil Overtons scenario that trivialized its own failures to provide a well-child evaluation and state-mandated Medicaid for Andrew."  CPS failed to provide complete medical information on Andrew, insisting that he was perfectly healthy, dropped him from Medicaid insurance in early September before the adoption was complete, failed to provide a Social Security number so he could be reenrolled, and failed to do a required home visit in the

month before he died.   Hannah reported her concerns about Andrew's

overeating and behavior problems to her Spaulding adoption case worker just days before Andrew died. The case worker, who confirmed Hannah's report, testified that Andrew appeared happy and unharmed and wanted to stay with the Overtons.  She had speculated that Andrew might have PICA, a specific type of eating disorder, and promised to refer Hannah to a specialist the next week.

 

4.      Evidence Ignored.  Per the appeal document, when police first

searched the Overton, the Zatarains, sippy cup, and tumbler that

Hannah had described were still there, untouched.   This would have

been key evidence – if Hannah had intentionally poisoned Andrew as the prosecution claimed, they'd have the murder method right there. Those items were not collected by the police and were never analyzed.  The contents of Andrew's stomach were never analyzed.  His kidneys were not analyzed to determine whether he was properly excreting sodium.

His blood sugar levels had been elevated for at least 12 weeks prior to his death, indicating diabetes, yet the medical examiner made no mention of it.

 

3.      DEFECTIVE OR FRAUDULENT SCIENCE ON THE PART OF THE MEDICAL

EXAMINER.   (Note:  This factor cited in 25% of the first 74 cases of

wrongful convictions cited in the book "Actual Innocence.")

 

1.      Inaccurate Ruling in Manner of Death.  The autopsy and ruling

of the death as a homicide are highly flawed, per the appeal document and the post-trial hearing.  Det. Hess was present with his police report when Dr. Fernandez conducted the autopsy.  Dr. Fernandez testified that he conducts 400 – 500 autopsies per year, far in excess of the 350 limit for accreditation.  An article in June, 2007 covered the problem of Dr. Fernandez' excessive workload - http://www.caller.com/news/2007/jun/24/me-workload/.  Expert witness Dr. Judy Melinek, board-certified in forensic pathology, testified that there was insufficient evidence to rule the death a homicide.

Fernandez' trial testimony revealed that he could not be certain the death was a homicide.

 

2.      Incomplete Autopsy and Analysis.  Fernandez never analyzed the

contents of Andrew's stomach, never examined sections of key organs under a microscope, which could have shown whether Andrew had an underlying condition that would have caused his body to retain salt, and ignored the indications of diabetes which can cause the body to improperly process sodium.  Specifically, tests showed that Andrew's sugar levels for at least the 12 weeks prior to his death had been dangerously high – his A1c was 8.2 -- meaning that his electrolyte levels would have been off as well. There is no similar test for sodium levels.

 

3.      A nearly identical case in England.  The case of Ian and

Angela Gay in the death of their almost-adopted son Christian Blewitt is strikingly similar to this case:  Adopted child born to a

substance-abusing mother.   Incomplete medical records.  Behavior

changes prior to becoming ill.   Sudden onset of symptoms.   Initial

misdiagnosis at the hospital.  Death from sodium intoxication.

Under-scalp bruising.  Adoptive parents accused of intentionally

poisoning the child with salt.   The Gays were initially convicted,

spent 15 months in prison, and finally were acquitted in a new trial.

They wanted to testify in Hannah's case but could not get a visa because of their conviction, albeit overturned.  Research suggests that fetal alcohol syndrome can affect the hypothalamus, the organ that regulates many of the body's chemicals.  One of the world's foremost experts in pediatric hypernatremia (sodium poisoning) contributed information in their case and came to testify in Hannah's case, but prosecutorial delays prevented his testimony.  Here is a summary article about the Gays:

http://www.dailymail.co.uk/news/article-440053/The-unending-nightmare-Ian-Angela-Gay-speak-out.html

 

 

 

4.      PROSECUTORIAL MISCONDUCT (Note:  This factor cited in over 30%

of the first 74 cases of wrongful convictions which were exonerated by The Innocence Project.)

 

1.      Brady Violation.  After the verdict, a key witness contacted

the defense attorney, stating that he'd been squelched by the prosecutor. Dr. Cortes had told prosecutors early on that he believed the death was an accident and that Andrew was definitely not a perfectly healthy child.  There were indications of fetal alcohol syndrome, which has been linked to PICA.

 

2.      New Evidence.  New evidence came to light after the trial

showing that, contrary to what one witness testified, the EMT training Hannah had taken 10 years earlier did not include information that

sodium can be toxic or how to recognize sodium intoxication.   At the

post-trial hearing in November, a former classmate testified to this fact and brought the textbook from the class.

 

3.      Improper Jury Instructions / Jury Charge.  Hannah's attorneys

objected to the jury charge at the time of the trial, pointing out that there is no statute in Texas for committing capital murder by omission or failure to act, and that the charge did not require the jury to believe Hannah had any intent of harming Andrew.  Judge Longoria allowed the jury charge to stand. A juror came forward in March, 2008 with an affidavit stating that the instructions to the jury were unclear and did not require them to believe that the

defendant had any intention of harming the child.   The juror asked

that Hannah be granted a new trial.   A recent case in which the jury

charge included two charges that were worded disjunctively, rather than as separate questions, was reversed by the Texas Court of Criminal Appeals and a new trial was ordered.

 

4.      Extensive Prosecutorial Misconduct during the Trial.  It is

described in the motion for appeal as "one of the rare cases which warranted a mistrial based on prosecutorial misconduct."  There were countless inflammatory statements made and repeated by the prosecution.  The court asked the prosecutors to stop using delay tactics at least 33 times.  Prosecutors' delays prevented an expert defense witness from testifying.

 

5.      False Statements to the Media & Gag Rule Violation.   Prior to

sentencing, Carlos Valdez, the Nueces County District Attorney, made the following statement on television:  "In this case, Mrs. Overton killed this boy. She caused his death intentionally. It was not because of omission. She did it intentionally. This resulted in justice."  The statement is wrong for two reasons:  1) the jury poll proved that they  did not find Hannah guilty of intentionally killing Andrew, but rather found her guilty of omission; and 2) the statement was in flagrant violation of the judge's gag order.

 

 

 

WHAT'S BEEN DONE TO TRY TO REMEDY THIS TRAVESTY OF JUSTICE

 

·        Over 20 ministers from a wide variety of denominations in

Corpus Christi signed a petition to the Governor on her behalf.  That petition was followed by hundreds of letters and email to the Governor from other private citizens.  No meaningful results or responses from the Governor's office have been received to date.

 

·        Formal complaints against the prosecutors have been filed

with the Texas Attorney General.   No meaningful results or responses

from the Attorney General's office have been received to date.

 

·        Over a thousand people from all over the world are closely

following Hannah's case and praying for her.  She often gets 20 or 30 letters a day.

 

·        In The Interest of Justice, a non-profit organization, was

formed in the wake of Hannah's conviction to educate the citizens of Corpus Christi about the justice system -- http://www.itij.org/

 

·        Hannah has a very capable appellate attorney, Cynthia Orr,

working on her case.

 

OTHER INFORMATION & REFERENCES

 

·        CPS (Child Protective Services) vigorously attempted to

permanently remove the other five Overton children from their family.

Thanks to capable attorneys, this was not accomplished.  The children now reside with their father and Hannah's parents as they await her release.

 

·        Two articles on the website give an overview of the case – one from

WORLD magazine and one from the San Antonio Express news.  Contact us if you want a footnoted version of the SA Express News article.

 

·        The book "Actual Innocence," by Scheck, Neufield and Dwyer is

one of the first to shed light on the problem of wrongful convictions in the US.

 

·         "Truth in Justice" – http://www.truthinjustice.org/ --  has

an excellent power point that dispels many myths about wrongful convictions and includes a chart from the book "Actual Innocence" on the factors that contribute to wrongful convictions.

 

·        Justice On Trial -- http://www.justiceontrial.org/ --

contains information about wrongful convictions nationally including Key Concepts

 

·        Dallas Morning News series – Unequal Justice – articles on

innocent people who pled guilty to avoid going to prison http://www.dallasnews.com/sharedcontent/dws/news/longterm/stories/111407dnproujday4main.3ad3fee.html

 

WHAT YOU CAN DO

 

Let us know that you are concerned.  Go to Contact Us at www.freehannah.com or send an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  We'll add you to the list of concerned citizens and send you periodic updates on Hannah's case and the movement to eliminate wrongful

convictions.   We guarantee your privacy and will not sell this list

or contact you for any other reason.  We are not affiliated with any political party.

 

1.      Ask questions.  Contact www.freehannah.com or

This e-mail address is being protected from spambots. You need JavaScript enabled to view it .   There is a lot of misinformation out there.

 We will get answers with supporting documentation to you as quickly as possible.

 

2.      Spread the word.  The only recourse citizens have against the

absolute power of CPS, prosecutors, and medical examiners who abuse their power is the media.  Public opinion drives the media.

 

3.      Go to www.freehannah.com.  Send an email of encouragement

and/or a donation.

 

4.      Educate yourself and your loved ones about wrongful

convictions.  Review the power point at the Truth In Justice website.

If this could happen to Hannah, it could happen to anyone.

 

5.      Prepare to take political action.

 

a.       Learn about your local prosecutors and judges.  In Corpus

Christi, TX, one resource is In The Interest of Justice – http://www.itij.org/.  When elections come, ask whether the candidates support actual justice or focus on achieving a high conviction rate.

The system currently rewards convictions, 85% - 90% of which are achieved by charging the worst possible crime on a suspect[i], then

convincing them to take a plea bargain for a lesser crime.   Not all

of these individuals are innocent, of course.  But of those who are,

90 – 95% take a plea bargain to avoid going to prison.   These

practices result in statistics that show lots of "solved" crimes and a

lower rate of the most serious offenses.   Prosecutors and judges

campaign using these statistics as evidence of what a good job they're doing in the "war on crime."  Unfortunately, it's a war with considerable collateral damage.

 

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