EXCLUSIVE INTERVIEW WITH PARK DIETZ

Published January 13, 2005, in issue 0402 of the Hook

BY WILLIS SPAULDING

For two decades, his track record as an expert witness won forensic psychiatrist and former UVA law professor Park Dietz acclaim-- and plenty of high-profile cases. The convictions of would-be Reagan assassin John Hinckley Jr., serial killer Jeffrey Dahmer, the Unibomber Ted Kaczynski, and South Carolina killer mom Susan Smith all came with Dietz as a witness to the prosecution. But some pundits claim the recent reversal of quintuple kid-killer Andrea Yates' conviction based on a Dietz error may spell an end to his courtroom career.

The focus has shifted from what Yates did and why she did it to what Dietz did and why he did it. Was his erroneous testimony an honest mistake on a minor issue, or a deliberate lie under oath that served as a linchpin for the prosecution's case? Or has Dietz simply become a scapegoat for an embarrassed prosecution?

Dietz's fancy courtroom footwork was the subject of The Hook's December 4, 2003 cover story, "Park Dietz deflates the insanity defense." Now, pundits are calling him a "hired gun," a "whore," and-- worst of all in the high-dollar world of expert witnesses-- "toast."

Ironically, Dietz sparked the latest furor less for his cerebral gymnastics than for possible braggadocio over his role as consultant to the television show Law & Order.

People sympathetic toward Yates, or categorically opposed to the death penalty are appalled, more than ever, that Dietz's testimony caused her conviction, and might have caused her death. And then there are the others, who are annoyed that the state will have to retry this woman who drowned her children, and that she may in this way escape punishment. They're not happy with Dietz either.

No one, it seems, wants to be reminded of Andrea Yates.

The story dates back to June 20, 2001 when Houston resident Andrea Kennedy Yates, then 36, drowned her five children one by one in the family bathtub, because-- she said-- Satan required this act.

Less than a year later, despite a vigorously argued insanity defense, a Texas jury returned a verdict of guilty on the charge of capital murder, and four days later recommended life imprisonment.

Now almost three years after the trial, a three-judge panel of the Texas Court of Appeals has overturned the conviction and ordered a new trial for Yates. (Prosecutors have the option of first seeking a review from all nine judges on the 1st District Court of Appeals and a review by the Texas Court of Criminal Appeals.)

Whatever private reasons the members of the Appeals Court might have had for overturning the verdict-- sympathy for the defendant or discomfort with the Texas limitations on the insanity defense-- the only reason mentioned in their written opinion is the testimony by the prosecution's star witness, Park Dietz.

Dietz, a consultant for the long-running TV show Law & Order, testified that an episode of that show involved facts similar to the Yates's case. That turned out to be wrong. There never was such an episode.

The Court of Appeals decided that this testimony and the use that both sides made of it unfairly prejudiced the jury against Yates.

What's not in dispute is that Yates's mental condition deteriorated after the birth of her youngest child, Mary, on November 30, 2000. At trial, the only real question about Dietz's qualifications was his familiarity with the kind of post-partum depression Yates might have suffered from, among other mental disorders.

Compared with Dietz's other qualifications, his work in Hollywood might have been of trivial importance to this or any other issue in the Yates case. Yet it was on this tangential point that the defense, on cross-examination, attacked Dietz, having no clue where it would lead.

George Parnham, defense attorney for Yates, was fishing for an admission from Dietz that the shows he consulted on did not involve post-partum depression. He caught this answer from Dietz instead:

"As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane, and it was aired shortly before the crime occurred."

Apart from the objectionable, but not objected to, reference to the killings as a "crime" before the jury had decided, Dietz went beyond the question to volunteer that the show had been aired shortly before Yates had killed her children.

Parnham didn't pursue this line of questioning further, but in closing arguments, both prosecution and defense would spin this unexpected snippet of testimony in their own special ways.

Was Dietz implying that Yates had been inspired by the television show to kill her children and feign insanity to escape punishment? Dietz never actually said that, a point overlooked in most of the media coverage last week.

"Not only did I never draw a connection," Dietz tells The Hook, "but I at all points thought there could be no such connection."

One might have expected in its closing arguments that the defense-- focusing on insanity-- to have claimed that, if anything, TV had made Yates kill her children. After all, testimony indicated she was crazy enough to think the TV was talking to her. Or the defense might have simply pointed out to the jury the obvious: there had never been any proof that such a show existed, and that there had never been any expert testimony linking Yates's actions to the show. (Or the defense might have ignored the point altogether.)

Curiously, the defense simply tried to brush aside Dietz's remark in its closing, "Or maybe even we heard some evidence that she saw some show on TV and knew she could drown her children and get away with it."

From a legal standpoint, it's a stretch to say there was such evidence, and particularly odd to hear it from the defense.

The prosecution took Dietz's mistake further in suggesting that the TV show gave her the idea of how to get out of marriage and child-rearing. In the prosecution's closing remarks, prosecutor Joseph Owmby said, "These thoughts came to her, and she watches Law & Order regularly, she sees this program. There is a way out. She tells that to Dr. Dietz. A way out."

Notice that the prosecution doesn't actually come out and say that Yates had been inspired by a TV show, much less say that she told Dietz that she had seen the show. But the implication is there.

In fact, neither Dietz nor any other expert witness alluded to this show in their opinions on Yates's sanity. Dietz's expert opinion that Yates knew her actions were wrong was mostly based on her psychotic delusion that those actions were dictated by Satan, and thus by definition wrong, as well as on other statements by her that suggested to him an appreciation of how others would view her actions as wrongful. Yates's habit of watching TV never entered into Dietz's opinion on her legal sanity.

Dietz flatly denies having assisted the prosecution in the preparation of its closing remarks. He says that he learned of the use the prosecution made of his testimony about Law & Order at the same time he learned that he had made a mistake in his testimony, on March 14, 2002, five days after he'd testified. By then it was too late. The jury had convicted Yates two days earlier.

The jury was told of the error in Dietz's testimony, but by that time the jury's only options were to recommend life imprisonment or the death penalty. On March 16, the jury chose life imprisonment.

"Law & Order informed me on March 14 about Mr. Owmby's reliance on the TV episode in his closing statement," Dietz tells The Hook. "I never dreamed he might do so, and I had no input to this closing argument."

Confusion escalated because Owmby had asked Dietz to research the show in two "passing conversations," says Dietz.

"I never researched it," says Dietz, "because I didn't think any TV show could have anything to do with the Yates murder other than as a point of irony."

Last week Dietz gave an interview on ABC's Good Morning America, in which he claimed that there wasn't any question that Yates knew right from wrong, and that "with that kind of smoking gun evidence, it would be silly to make up something else"--begging the question of whether he had been, just this once, silly.

Dietz said on Good Morning America that his was an honest mistake caused by prosecutors who told him there had been such an episode on Law & Order at the time that Dietz was advising the show. He said as soon as he discovered the error, he had offered to fly back to Houston to set the record straight, but was told just to write a letter, a detailed letter which never made it into the record. Thus, he concluded, "the three judge panel didn't have access to the full story."

The Texas prosecutors, for their part, have denied to ABC and to the Associated Press that they ever told Dietz that there had been an episode of Law & Order such as Dietz described at trial. They admit they might have asked him when they were preparing for trial if there had been such an episode.

"A citizen had written to them that a few days before the homicides, a re-run of Law & Order aired on A&E about a mother acquitted by reason of insanity after drowning her children," Dietz tells The Hook. The prosecutors are reported by The Houston Chronicle on January 7, 2005, as saying that a local school teacher had emailed them about such a show, although it was said by the teacher to be an episode of LA Law from the '80s.

Dietz's first written communication to the prosecutors concerning his testimony makes no mention of the prosecutors having contributed to his error. That letter is reproduced here for the first time in print. [See letter.]

Dietz told The Hook by email that at the time he wrote this letter he did not recall his having discussed the existence of such a TV show with the prosecutors prior to trial. A year later, in 2003, while preparing to go before a Harris County grand jury investigating whether he had committed perjury in his mistaken testimony in this case (the grand jury decided he had not), he found a note to himself, regarding a phone conversation with the prosecutors prior to the Yates trial.

Dietz believes now that he mixed up his recollection of the Law & Order episode, "Angel," based on the Susan Smith murders, and the phone conversation with the Yates prosecutors about the supposed LA Law episode, which to date has not been confirmed to exist.

In her book-length account of the trial, "Are You There Alone? The Unspeakable Crime of Andrea Yates, author Suzanne O'Malley suggests that she knew of what she calls Dietz's "mistestimony" as early as the day it occurred, Saturday, March 9, 2002.

Rather than alerting Dietz, with whom, as a former writer on Law & Order, she had once worked, she tried to interest several NBC news programs in the story of the mistake. When that didn't pan out, she ran the story past other networks, which also passed. Then she handed it off to a stringer, Steven Long, who allegedly thought his "scoop" would run in the New York Post.

O'Malley confusingly says (on page 207) that the scoop was supposed to "run the following day, Saturday, March 9, 2002, the day Dietz was cross-examined." This statement might make sense if she meant, "the day after Dietz was cross-examined."

O'Malley also tells of defense attorney Parnham calling her "just after eight on the night of the guilty verdict." He had been trying earlier that day, March 12, to get through to NBC to get someone to testify to Dietz's mistake in the sentencing phase of the trial. She put him in touch with Dick Wolf at NBC. It seems possible from her account that her March 12 call to Dick Wolf was not her first.

Although O'Malley is less than clear on some points, her account will lead some to conclude that she knew before March 12 a mistake had been made, and that she had been in close contact with Parnham on this issue before the evening of March 12. She takes particular pride in quoting Parnham's words to her after the jury gave his client life in prison. "George Parnham found me in the corridor outside," she writes (on page 210). "'You saved her life,' he said."

Did O'Malley, or Parnham, save Yates's life by waiting to reveal Dietz's error in the sentencing phase?

If whoever first discovered the error had told the defense or the prosecution about the error on or before March 12, this story would not be about whether Dietz deliberately lied under oath or made an honest mistake. It might be about prosecutorial misconduct or ineffective assistance of the defense counsel. Or maybe the ethics of journalists looking for a scoop.

At the moment, though, the reversal of the Yates conviction has been the occasion for condemnation not of Texas law and lawyers but of Park Dietz. Is he a fair target or a convenient scapegoat?

Deborah Denno, professor at Fordham Law School, was quoted in the January 7, 2005 issue of The New York Times calling Dietz, "a hired gun in the worse sense."

That same evening on the FoxNews program On the Record with Greta Van Susteren Dietz was called by a panel of experts a "whore," who, in the view of several of them, deliberately lied in order to assure Yates's conviction and possible execution.

As to his future usefulness as an expert witness, he is "toast," they claimed. Within the legal community, "toast" is probably a greater insult than "whore" or "hired gun in the worst sense"-- the latter two epithets being routinely hurled at the other guy's expert witnesses.

"He's an insidious guy," said one of the experts, Geoffrey Fieger. "He's a very, very bright guy, but he doesn't appear to have a soul."

Fieger, a Michigan attorney, well-known for his over-the-top putdowns of witnesses averse to his case, had once sued The Jenny Jones Show on behalf of the family of Scott Amedure, who in 1995 had surprised Jonathan Schmitz during a taping of a "Secret Admirer" segment of the show with a proclamation of a hitherto secret crush. For this, Schmitz had killed him.

Dietz had testified for The Jenny Jones Show that there was no way of predicting that Schmitz would murder anyone. Six years later, now in his capacity as a Fox expert on the Yates decision, Fieger illustrated Dietz's alleged lack of credibility by noting that the Jenny Jones jury had ignored Dietz and awarded Fieger's client 29 million dollars.

What Fieger neglected to mention to the Fox audience was that the Michigan Court of Appeals eventually agreed with Dietz and took away that 29 million dollars, so Fieger might have 29 million reasons to be annoyed with Dietz.

Van Susteren seemed particularly concerned with the alleged six-figure fee Dietz earned for his work on the Yates case.

What began as at best a side-show over Dietz's Hollywood connections may have revealed in him an imperfect memory and even a willingness to gild the lily, by, for example, characterizing the evidence of Yates' alleged sanity as "smoking gun evidence." But does it make the case that Dietz is a "whore" or "hired gun in the worst sense"?

The best evidence that Dietz's conduct in the Yates case stemmed more from quirks in Texas law and less from his desire to give prosecutors the answer they were seeking would come soon enough.

A year after the Yates conviction, another Texas mom, Deanna Laney, killed two of her kids and wounded another, this time by stoning them. In the Laney case there was no question that the defendant had heard and modeled her behavior on the story of a mentally ill child-killing mother seen on TV: Andrea Yates.

Like Yates, Laney had acted under the force of a religious delusion. Like Yates she faced the prosecution's expert, Park Dietz.

But unlike Yates, who had heard the voice of Satan, Laney had heard God, albeit a God who emitted the odor of burning sulphur, and required the same acts as Yates' Satan.

Dietz, although he was working for the prosecution, agreed with the defense experts that Laney could not tell right from wrong. Trial testimony indicated that she believed killing her children was God's work, and therefore good-- not Satan's work and therefore bad.

See an excerpt from the PowerPoint presentation used by Dietz in the Laney case (below):

Comparison between Mrs. Laney and Mrs. Yates
Perception Laney Yates
Instruction from... God Satan
Expected outcome... Heaven Hell
Expected punishment... No Yes
Thought God approved... Yes No
Thought did wrong... No Yes
Saw killing as a sin... No Yes
source: Phillip J. Resnick, M.D.

The result in the Laney case suggests that Dietz was in that case and in the earlier Yates case all too faithfully applying Texas law. That law, not unlike the law in Virginia or most other Anglo-American jurisdictions, dictated a different result from what common sense says were identical cases about a parent committing the ultimate crime.

Whatever one's feelings are about infanticide and the criminal punishment of mentally disordered mothers who commit this act, the problem doesn't seem to be the moral laxity of the expert witnesses in the cases that follow, so much as the moral rigidity of the law itself. If the law supposes that Mrs. Yates is sane and Mrs. Laney is not, then as Dickens's Mr. Bumble observed, "the law is an ass-- an idiot." Don't hold your breath waiting for an appellate court to reach that conclusion.

FILE PHOTO BY JEN FARIELLO

Andrea Yates, with attorney George Parnham at left, enters the courtroom before closing arguments in March 2002.
FILE PHOTO BY REUTERS

Now based in Newport Beach, California, Dietz was on the UVA Law and UVA medical faculties in the late 1980s.
FILE PHOTO BY JEN FARIELLO

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