HOUSTON (AP) – The state’s highest criminal court on Wednesday upheld a lower court ruling that threw out Andrea Yates’ murder convictions for drowning her children in a bathtub in 2001.

Harris County Assistant District Attorney Alan Curry said the case will be retried or a plea bargain considered. Jurors rejected Yates’ insanity defense in 2002 and found her guilty of two capital murder charges for the deaths of three of her five children.

A lower court ruling in January had thrown out the convictions because of erroneous testimony that prosecutors used to suggest that Yates had gotten the idea for the killings from an episode of the television show “Law & Order.” The episode was found later not to exist.

Curry said if the case goes back to trial, he is confident Yates will be convicted again. She was sentenced to life in prison.

“Andrea Yates knew precisely what she was doing,” Curry said. “She knew that it was wrong.”

Yates’ attorney, George Parnham, said that although he wants to avoid another trial for his client, he doubts he and prosecutors can reach a plea agreement that addresses Yates’ mental health needs. Yates has been treated for years for severe depression and other disorders that require anti-psychotic drugs.

“We will examine all possibilities and hopefully arrive at a resolution that could prevent Andrea from going through the torment of being subjected to the evidence of this case. We all know how horrendous it was to hear this evidence,” he said.

Russell Yates, who stood by his wife throughout the trial but later divorced her, said she never should have been tried for their children’s deaths.

“I think everyone would lose again if they brought her back to trial,” he said. “Although, if she does go back to trial she could be found not guilty by reason of insanity.”

Russell Yates said he visits his former wife once a month in prison. He said she belongs in a state hospital, where “the primary emphasis is on care and not security.”

The lower court, the First Court of Appeals in Houston, agreed with Yates’ attorney that erroneous testimony from forensic psychiatrist Park Dietz could have swayed jurors who otherwise might have found Yates was insane.

Dietz, who consulted for “Law & Order,” testified that shortly before the killings occurred, an episode ran about a woman who drowned her children and was found innocent by reason of insanity.

But it turned out that no such “Law & Order” episode existed.

On June 20, 2001, Yates drowned her five children one by one, then called police to her Houston home and showed them the bodies of Noah, 7, John, 5, Paul, 3, Luke, 2, and 6-month-old Mary.

Yates, 41, pleaded insanity, and according to testimony at the trial, she was overwhelmed by motherhood, considered herself a bad mother, suffered postpartum depression, had attempted suicide and had been hospitalized for depression.

Five mental health experts testified she did not know right from wrong or that she thought drowning her children was right. Dietz was the only mental health expert to testify for the prosecution and the only one who testified she knew right from wrong.

AP-ES-11-09-05 1924EST

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