Failure to Act a Capital Crime?

by Diane Fanning

Guilty by omission. In other words, the defendant is found responsible for another person’s death by not acting quickly enough to save that life.

A fair enough charge. If someone sits by and watches while another person is clearly in medical distress, there should be a penalty.

But capital murder? Capital murder convictions, we’ve been told, are reserved for the worst of the worst—for the crimes that we all find inconceivable and horrendous. In Texas, a capital conviction means the defendant receives the death penalty or life without parole. These ultimate penalties are intended to be used for the most heinous crimes.

But a jury in Corpus Christi found Hannah Overton , the biological mother of five, guilty of capital murder for failing to act quickly enough to get medical attention for an ailing child.

That’s right, according to an in-depth investigative piece written by stellar journalist John MacCormack in the San Antonio Express News, the jury did not believe, as the prosecution alleged, that Hannah intended to harm or kill Andrew—they simply believed she took too long to get him help. The judge’s instructions led the jurors to believe they had no other choice. They did not know that their guilt by omission conviction would result in the ultimate punishment under the law.

Hannah and her husband Larry were fostering Andrew Burd and working toward his adoption. Child Protective Services claimed Andrew was a perfectly healthy child when they placed him in their home. But it simply was not true: Andrew had an unhealthy obsession with food. Not only did he gorge on foods in the refrigerator, he also ate inappropriate items.

If they left a bar of soap in the bathroom, Andrew took a bite out of it. He’d eat any food left behind in the cat’s dish. He ate toothpaste. He once broke a glow-stick and tried to eat it. Hannah and her adoption counselor were seeking help for his condition, known as pica.

The day of Andrew’s death, Hannah made Cajun stew seasoned with Zatarain’s spice. Andrew loved the hot flavoring and his insatiable appetite did not diminish after eating. In order to soothe him, Hannah sprinkled Zatarain’s into water in his sippy cup.

Soon after, Andrew exhibited symptoms of hypernatremia, sometimes caused by salt poisoning. Typically, victims are not recognized as being critically ill for an hour and a half. On the outer edge of that window of time, Hannah and Larry entered the emergency room with Andrew. They drove him in their car because they thought there was not enough time to call 9-1-1 and wait for the arrival of an ambulance.

The jury’s rejection of the prosecution’s belief in intentional poisoning made sense to Dr. Michael Moritz, an expert on salt poisoning. He arrived in Corpus Christi to testify for the defense but he was never called. He told John MacCormack, “There is no evidence of force. No salt on the body. No lacerations to his mouth. No salt crystals in his mouth or nose. . . . If you go into the literature, in every single case of alleged salt poisoning, they were kids just like him… There’s nothing to say he didn’t dump the whole damn thing of Zatarain or the salt shaker into his drink. A normal kid won’t eat it because it’s unpalatable. But this is not a normal kid. He’s having a highly stressful day. He’s a gorger. He’s got pica. And boom. He gorges it and ten minutes later, his brain is starting to shrink.”

So how did Hannah end up in such a mess?

At one point after Hannah’s arrest, Child Protective Services submitted an affidavit with a long list of child abuse allegations in the household. But that could have been a cover-up for their failure to act when Hannah requested a referral for Andrew’s pica problem. Every point was proven to have no basis in fact—all twenty accusations were shown to be false and CPS dropped the case. The employee who wrote the affidavit, no longer works for the agency.

On the forensic front, the autopsy was flawed. Although the pathologist ruled the death a homicide, he admitted on the stand that he could not be certain of his own determination. In addition, he never analyzed the contents of Andrew’s stomach or examined the microscopic sections of key organs that could have shown his underlying condition.

Further, in the trial itself, the prosecutors never called one of the witnesses on their list, including the doctor who treated Andrew, and they never disclosed to the defense the opinions they received from this doctor.

It seems as if law enforcement and the prosecution lost their way in an extreme case of tunnel vision. They could only see one possibility and refused to look at any others. The judge appeared to aid and abet their prosecutorial misconduct by instructing the jury in a way that led to a mandatory sentence of life without parole for a crime that the jury believed was committed without premeditation, without intention to harm or murder, and without malice.

Even the jury’s decision of negligence is considered unrealistic by medical experts. But even if you do agree with the jury, how could any reasonable person believe that a faulty judgment call merits total banishment from society for life?

The case is under appeal at the Texas 13th Court of Appeals—I fervently hope that common sense and justice will prevail.

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