The world is a dangerous place, not because of those who do evil,
but because of those who look on and do nothing.

~~~ Albert Einstein

Sunday, February 08, 2009

Murder by Omission

In the course of researching Andrew Burd's death, and the trial of Hannah Overton that followed- it seems the biggest feat to overcoming common misunderstandings on the case is to deal with the actual charges against Hannah Overton. Most people seem to accept the fact that while in the care of the Overton's, Andrew did indeed suffer abuse. But in disagreeing with the conviction they point only to the idea that Hannah didn't abuse Andrew that day with the intention of killing him, and because they believe that- there is a leap they can not make to justify the murder charges.

To best explain why the conviction is just, we really have to look closely at the capital murder charge against Hannah Overton.

Capital Murder, according to the Texas penal code:

(a) A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and:
(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation;
(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;
(4) the person commits the murder while escaping or attempting to escape from a penal institution;
(5) the person, while incarcerated in a penal institution, murders another:
(A) who is employed in the operation of the penal institution; or
(B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;
(6) the person:
(A) while incarcerated for an offense under this section or Section 19.02, murders another; or
(B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 20.04, 22.021, or 29.03, murders another;
(7) the person murders more than one person:
(A) during the same criminal transaction; or
(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct; or
(8) the person murders an individual under six years of age.
(b) An offense under this section is a capital felony.
(c) If the jury or, when authorized by law, the judge does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.

Under Section 19.02 (b)(1), Murder is defined as intentionally OR knowingly causing the death of an individual.

Capital murder requires that a person acts intentionally OR knowingly. Most people are only aware of intentionally and do not realize that capital murder can also be accomplished by only acting knowingly. In other words, intentionally is not required for capital murder.

But, let's start with intentionally. When most people hear the words "intentionally" they think it requires "malice aforethought" or pre-planning. This is not the true definition of intentionally in the State of Texas. Intentionally can be spur of the moment. Did Hannah wake up that morning with intent to kill Andrew? No, but she wasn't required to under Texas law. She could have formulated the intent in a moment of rage. Did she intentionally hand him a lethal dose of Zatarain's? Most likely not. But again, it's not required.

That could be the end of the case, except that Hannah was also charged with Capital Murder by omission. In other words, Hannah intentionally OR knowingly caused Andrew's death by failing to seek medical care. The "by omission" part comes into play because after the fact, after she handed out a lethal dose of sodium, Hannah Overton intentionally OR knowingly withheld medical treatment.

Again, Texas Penal Code covers this in Chapter 6, Culpability Generally.

person commits an offense only if he voluntarily engages in
conduct, including an act, an omission, or possession.
(b) Possession is a voluntary act if the possessor knowingly
obtains or receives the thing possessed or is aware of his control
of the thing for a sufficient time to permit him to terminate his
(c) A person who omits to perform an act does not commit an
offense unless a law as defined by Section 1.07 provides that the
omission is an offense or otherwise provides that he has a duty to
perform the act.

Hannah Overton had a duty to act by providing medical care for Andrew because she was Andrew's adoptive parent/ guardian.

We're looking at (c) in the above penal code, which describes the act of omission as defined by Section 1.07. That section pertains to intentional:

(28) "Intentional" is defined in Section 6.03
(Culpable Mental States). '


(34) "Omission" means failure to act.

So, we go to Section 6.03 of the Texas Penal Code:


(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Remember, capital murder can be accomplished by intentionally OR knowingly.Knowingly is a lesser mental state than intentionally.

Now, to put this in layman's terms reflective of the case:

Hannah Overton is angry with Andrew. He's been, in her mind, causing trouble by being hungry all day. His punishment is a dose of seasoning that will make him uncomfortable, thirsty and maybe even a little ill. Only, unlike past times, this time Hannah hands out a lethal dose- too much sodium for his malnourished body to handle. As Andrew begins to suffer the effects of the toxin which is consuming his body it becomes evident that something horrible is wrong with him. He begins vomiting, his body attempting to force the toxins out. For nearly two hours the poisons wreak havoc on his four year old body. Hannah is not oblivious to his medical condition, rather she reacts to it by calling friends, her husband, her church members. She even referenced her medical books looking for information on shock. Yet, despite her growing concern, she doesn't call 911. She doesn't rush him off to the hospital. Instead, she waits for her husband to return home, continues making calls and finally, two hours later takes him to an Urgent Care facility.

Now, some will say that Hannah lacked the medical training needed to understand the dire condition Andrew was in, but she clearly KNEW he needed medical attention, because she attempted to provide him treatment at her home. She evidently at that moment had enough faith in her experiences to know that he NEEDED medical assistance, but yet refused to 911 or take him to the hospital.

As stated, Texas criminal law establishes a belief that certain individuals have a legal duty to provide aid to certain persons. It makes them criminally liable when they fail to preform such duties. Hannah's OMISSION to seek medical treatment, her failure to provide medical treatment, to Andrew resulted in his death, she was bound by law to assure that he received medical treatment, and her willful failure to do so in a timely matter was the deciding factor in his death. For a much better understanding of how this is reflected in the Overton case, I strongly suggest you read Homicide: Legal Aspects - Introduction.