Skip to main content /TRANSCRIPTS



Will an Insanity Defense Convince a Texas Jury?; Supreme Court Considers Mental Retardation and the Death Penalty

Aired February 20, 2002 - 20:30   ET


ANNOUNCER: THE POINT with Anderson Cooper.


FAIRY CAROLAND, RELATIVE OF ANDREA YATES: We do not want her to receive the death penalty. We want her to be found not guilty by reason of insanity.


ANNOUNCER: Andrea Yates' relatives want her to live, but will an insanity defense convince a Texas jury? Tonight, the arguments for and against.


ROBERT GORDON, DIRECTOR WILMINGTON INST. NETWORK: What works against her is the fact that her behavior involved rational thinking and dialogue when she called 911.


ANNOUNCER: Flashpoint, by reason of insanity.

Plus, the constitution. Mental retardation and the death penalty. A Supreme Court case adds fuel to a national debate.

And a divorce and custody battle with an identity crisis.


UNIDENTIFIED FEMALE: He had a transgender change. He's a woman. He thinks he's a man.


ANNOUNCER: THE POINT. Now, from New York, Anderson Cooper.

ANDERSON COOPER, CNN HOST: Good evening. It is time to get THE POINT. The jury in the Andrea Yates trial will be allowed to see photographs and videotapes from the crime scene. The process of making that decision took up most of today's trial time. But there was very little testimony about the pictures themselves. The judge sent everyone home early because of an emergency that had nothing to do with the trial.

The prosecution is slowly building a case that Yates knew what she was doing when she drowned her five children last June. They say it is murder and they want the death penalty. Yates is using an insanity defense, but in Texas that is a gamble.

"Flash Point," by reason of insanity. Here is CNN's David Mattingly.


DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): She's been called depressed, delusional, catatonic, psychotic, suicidal. Just days into the capital murder trial of Andrea Yates and there is no doubt that this 37-year-old mother who killed her five children has long-suffered from serious mental illness. But in a courtroom that alone is not enough to protect her from a verdict of guilty.

GORDON: Clinically it could be understandable that she could be conflicted and have these dissonant ideas. But from a behavioral point of view, what the law considers right and wrong, moral, just, ethical, it's not possible.

UNIDENTIFIED MALE: Did not know that his conduct was wrong.

MATTINGLY: When it is a choice of murder or madness, the prosecution almost always prevails. The insanity defense is rarely used, and even more rarely successful.

UNIDENTIFIED FEMALE: The odds are not good, obviously. The odds are very low.

MATTINGLY: The Texas law regarding the insanity defense is considered mainstream, based on a standard established in 1843, 13 years before Sigmund Freud was even born. But as the science of psychology grew, courts for a time became more liberal, allowing just the presence of mental illness to be a defense. That ended with the assassination attempt of President Ronald Reagan. John Hinckley Jr.'s successful use of the insanity defense provoked a dramatic sea change in court interpretation. Some states banned it altogether. Most, like Texas, place a heavy burden on attorneys representing people like Andrea Yates.

GORDON: What works against her is the fact that her behavior involved rational thinking and dialogue when she called 911. She admitted and confessed that she had killed her children. And she also said she had been premeditating it or contemplating it for two years.

CAROLAND: To punish someone that's mentally ill and does not know the significance of what they're doing. That's crazy. That's insane.

MATTINGLY: Sometimes the insanity defense does work. In 1997, a jury determined Houston mother Yvonne Rodriguez did not know right from wrong and found her not guilty of beating and strangling her child. But under Texas law, legal experts say Yates' prosecutors offered all the evidence they needed for a conviction when they played the 911 tape the first day.

SANDRA GUERRA-THOMPSON: One can be very, very mentally ill and still appreciate the difference between right and wrong. But under the law, it is only the people who cannot distinguish right from wrong that are insane.

MATTINGLY (on camera): If Andrea Yates is found not guilty by reason of insanity, it raises the question, could it happen twice? She's currently on trial for the murders of just three of the five children, charges are still pending in the deaths of the other two. David Mattingly, CNN, Houston.


COOPER: Well, of course, public perceptions of insanity have changed over the years, as have perceptions of mental retardation. A timely example occurred today in Washington. The Supreme Court was asked if it is cruel and unusual punishment for Virginia to execute Daryl Atkins, a killer with an I.Q. of 59. That's considered mild retardation.

Now back in 1989 when the court upheld executions of the mentally retarded, only two states had laws against it. Eighteen states have such a ban now. So is the national consensus building? Do more laws need to change? Let's ask some experts. Diane Rust-Tierney she's director of the ACLU's Capital Punishment Project and joins us from Washington. And in Sacramento, Kent Schiedegger, he is legal director of the Criminal Justice Legal Foundation.

Thank you both very much for being with us tonight. I just want to start off reminding you, Daryl Atkins is a 24-year-old man on Virginia's death row. He committed a murder in 1996, killed a man named Eric Nesbit (ph), kidnapped and murdered him. He apparently has an I.Q. of 59, and that -- the court is considering whether or not he will be executed.

Diane, the question of whether or not a national consensus has built against executing someone who's mentally retarded seems to have become the central question in this case. Explain why?

DIANE RUST-TIERNEY, ACLU: That's absolutely right. As you said when the court looked at this issue before there were only two states that had said that people with mental retardation could not be executed. We said at that point that there was an emerging consensus. That consensus has now manifest. Eighteen states now say that the death penalty for people with mental retardation is just not right.

COOPER: Well, Kent, let me ask you that. Of the 38 states that allow capital punishment, as Diane said, 18 of them have outlawed capital punishment against someone who's mentally retarded, that sounds like a broad consensus. No?

KENT SCHIEDEGGER, CRIMINAL JUSTICE LEGAL FOUNDATON: Well, no, not really. In fact it's not even a majority. There are 20 that haven't. Under the Supreme Court's precedence, that's nowhere close near the degree of consensus necessary to take this decision away from the people of the states. The issue is that the people of the states should decide through the Democratic process. Nothing in the Constitution says one way or the other. And that says entirely appropriate that the legislations of the states should decide this for each state.

COOPER: Well, Diane, is it up so to the Supreme Court to be making this kind of decision?

RUST-TIERNEY: Well, it's not the Supreme Court -- it's not the Supreme Court that's making this decision. It's the Supreme Court's job to enunciate what the constitutional standard is, and that constitutional standard is emerging from the state legislatures. That's what we're doing, the Constitution says it's a living and breathing document. The standards change. And that's what we've seen, we've seen enormous growth in our perception about human rights, and now the states are saying we don't want people to be executed.

The supreme court will saying now is that the remaining states have to get the message. And, frankly, Virginia needs to get the message. Virginia is one of the states that still wants to execute people, and it's also one of the states where a person with mental retardation who was innocent was sentenced to death wrongfully. And that's exactly why there has to be a ban on executing people with mental retardation.

COOPER: Kent, let me ask you, when the court ruled against executing people under the age of 16, it said you should only execute -- quote -- "a fully rational choosing agent." Is someone who is mentally retarded a fully rational choosing agent?

SCHIEDEGGER: A person who who is severely retarded is not. And that's the way the law is and has been for many years, you can't execute the severely retarded. The more difficult question is what to do in the borderline cases? It is presently the law that the person is entitled to put his evidence of retardation as a mitigating circumstance. He's entitled to have the jury instructed on that. That's been the law since 1989, at least, and that's the law today.

RUST-TIERNEY: You know that's just not --

COOPER: Diane -- Well, Diane, obviously the ACLU is opposed to all executions. But aren't you painting this with a pretty broad brush? If you are saying -- I mean, aren't there degrees of mental retardation. This man, his I.Q. is 59. Apparently the cut-off is often 70, but he has been described as being mildly retard. Some people might say if this man can plan, carry out a kidnapping and a murder, you know, he has a certain level of intelligence.

RUST-TIERNEY: Two quick points. First of all, we're not talking about the difference between the death penalty and no punishment at all. Everybody agrees that people who commit crimes ought to be held accountable. But that accountability has to be related to culpability. How can people who everybody agrees are functioning at developmental disadvantages in our society be held to be the most accountable, the most culpable. The consensus is in the states that these people ought to be punished but not with death. COOPER: Kent, your final thoughts tonight?

SCHIEDEGGER: First of all, let's emphasize it is hotly disputed whether Atkins is retarded at all. The prosecution has put on a very good case that this man is not retarded. That 59 number is very questionable. An I.Q. test alone is not the definition of retardation.

RUST-TIERNEY: There are -- there are clear definitions of --

COOPER: Kent, let me ask you. Kent, do you think the Supreme Court should be the ones deciding what is the correct definition of what's being....


COOPER: ... mentally retarded, or is that left up to the states?

SCHIEDEGGER: I think we should go forward with legislation, let each state decide, and how they're going to handle the borderline cases and how they going to handle cases that have been correctly decide under the law in existence at the time of the trial. That's --

COOPER: Diane, just a few seconds left, your response and we will have to leave there.

RUST-TIERNEY: Well, the states are leading the way. And that's what this case is about. The states are saying that banning executions for people with mental retardation is the Constitutional standard for today. The only thing that the Supreme Court has to do is get the message to the few remaining states that are not hearing the message.

COOPER: All right, Diane Rust-Tierney with the ACLU, Kent Schiedegger. Thanks very much you for taking time out of your busy schedules to join us tonight. I appreciate this interesting debate.


RUST-TIERNEY: Thank you for having us.

COOPER: Thank you. Coming up next, a question that wouldn't have even come up a generation ago. Stay with us and see the unusual mess doctors, lawyers and emotions have created.


ANNOUNCER: Next, Linda is divorcing Michael, who used to be Margo. The question now, who gets custody?


UNIDENTIFIED FEMALE: If Michael is a female, there is no marriage. And if Michael is not a husband, there is no adoption.

(END VIDEO CLIP) ANNOUNCER: THE POINT is coming right back.


COOPER: And welcome back. Think you have tough decisions to make? Well, pity a Florida judge who is stuck with a custody battle that might even give Solomon pause. We'll let CNN's John Zarrella try to explain.


JOHN ZARRELLA, CNN CORRESPONDENT (voice-over): This is a case of he said, she said. She, Linda Kantaras, says that he, Michael, the man she married in 1989, isn't really a man.

LINDA KANTARAS: He had a transgender change. He's a woman. He thinks he's a man.

ZARRELLA: Michael, through his attorney says, it's a little late to be questioning his gender.

UNIDENTIFIED MALE: For 10 years, they were a family. Linda Kantaras held Michael out as her husband to the whole world.

ZARRELLA: Until now, Michael's attorney says, now that the two are divorcing. That wouldn't be a big deal, except the Clearwater, Florida case involves children, and each wants primary custody of the kids, one adopted by Michael, the other the result of artificial insemination.

MICHAEL KANTARAS: I love my children. I would never, ever want my children to feel that I did not love them.

ZARRELLA: But love is not at issue here. When Linda married Michael, she admits knowing he was a transsexual, who, before gender reassignment surgery, was known as Margo. Now she says Michael is not a man, and Linda's attorney says that means there never was a marriage, because Florida prohibits same sex marriages.

CLAUDIA WHEELER, LINDA KANTARAS'S ATTORNEY: If Michael is a female, there is no marriage. And if Michael is not a husband, there is no adoption.

ZARRELLA: Legal experts say Judge Gerard O'Brien has a mess on his hands.

(on camera): Even if the judge rules this is a same-sex marriage, he must then decide whether that dissolves Michael's claim to being the father, and voids any custody rights. And there is no Florida law to help guide the judge.

(voice-over): Judge O'Brien says it could take him months to reach a decision. Advocacy groups are watching this one closely, because it is groundbreaking. The ACLU says it's really very simple, the children should be with the better parent. The American Family Association says the bottom line is Michael is biological still Margo, despite surgery and hormone treatments.

BRIAN FAHLING, AMERICAN FAMILY ASSOCIATION: You know, the strength of belief does not determine that Mr. Kantaras is actually a man any more than me thinking I'm Napoleon makes me Napoleon.

ZARRELLA: If only it was that simple for the judge, who says he may end up living in the law library before he's comfortable ruling on this one.

John Zarrella, CNN, Miami.


COOPER: So who should get the children? Well, whether you are ready to answer or not, or whether you think they ought to resort to tossing a coin, let's get some more input. In Washington is Peter LaBarbera, an analyst with Culture and Family Institute. And in Clearwater, Florida is Karen Doering. She's an attorney for Michael Kantaras. Thank you both for being with us.

Karen, I want to start off with you: Is Michael Kantaras a man or a woman?

KAREN DOERING, ATTORNEY FOR MICHAEL KANTARAS: Michael Kantaras is absolute a man. He completed his gender reassignment surgery in 1987. He went through an extensive medical protocol, and in the course underwent hormone therapy and finally surgical procedures that created permanent, irreversible changes in his body. Michael Kantaras, as of 1987, is completely a man. According to -- to the medical community, he's completely male.

COOPER: All right, Peter LaBarbera, let me bring you in here now. The reason this has become such a central question is that under Florida law, if Michael Kantaras is ruled to be a woman still, then it was in effect a same-sex marriage, and in effect there's not custody rights. So, in your opinion, is Michael Kantaras a man or a woman?

PETER LABARBERA, CULTURE AND FAMILY INSTITUTE: Well, clearly, he's not a man. His birth certificate says he's a woman, and he can't change his genes. I'm sorry that the medical community has embraced this fiction that you can change a woman into a man and vice versa. But that doesn't make him a man.

I feel sorry for him that he brought this on his children by pursuing the whole parenthood option. And what we really fear about this, Terry, is that the homosexual activists and now their transgender allies are trying to create precedent that it doesn't even matter if a parent is a so-called transgender. They're thinking more about themselves unfortunately than they are the best interests of the children.

COOPER: Well, Peter, let me stop you there. There are thousands of people across the country who, you know, feel that the gender that they were born with is not their actual gender, that biologically, their biology is different than their gender. And the medical community has allowed people under intensive care to have hormone therapy, to, in some cases, have gender reassignment surgery.

Are you saying that there's no way that, in fact, what the medical community calls gender dysphoria, is not legitimate?

LABARBERA: Well, I have actually read about these operations and they're terribly grotesque and it's very sad and that's to be sure. But the issue here is the activism of these transgender people and the gay activist lobby which is trying to saying that it's OK for the children to be exposed to this, in fact, it doesn't even matter compared to a normal married couple or a male/female couple, how the children is raised. And I'm afraid that they're putting their interests first and not the best interests of the children. Obviously, it matters...

COOPER: Let's try to focus on the principles in this case rather than what you say are activists and their cause in this. Karen, let me bring this you to. What is in the best interests of these children? I mean, it's my understanding that prior to this divorce, Linda Kantaras and Michael raised these children as husband and wife and are, in fact -- Michael Kantaras is in fact the only father these children have known. Is that correct?

DOERING: That is absolutely correct. And speaking of the best interests of these children, the neutral, court-appointed psychologist in this case, after extensive interviews with the children and the parents over months and years, actually wrote in his very, very detailed report that it is in the best interests of these children that Michael Kantaras be granted primary custodial -- be the primary custodial parent.

COOPER: Peter, in your opinion, the best interests of the children is served in what way?

LABARBERA: Well, I don't think it's in the best interests to be exposed on a daily basis to this sort of idea that it's OK to change your gender. I think it's in the best interests that the child be with their biological mother. And I'm sorry that he is foisting this on the whole nation and trying to create the idea that it doesn't really matter if the parent is so-called transgendered. I don't doubt that he loves the child...


COOPER: Actually, I have a question for Peter. And it is a confusing case, but if you don't believe that Michael Kantaras was a man and you believe all along he's a woman, then I guess are you saying that Linda has been in a -- in effect, a same-sex relationship with this man and that -- are you supporting the children remaining in the home of a same-sex parent, of a lesbian parent?

LABARBERA: Well, Terry (sic), I don't think it was wise for her to do what she did and to marry this man knowing he was not really a man. I'm not embracing all the things that she has done. But I think her state right now would be better and more healthy for the children and this idea that's in the legal -- becoming law now that it doesn't really matter if one of the parents seeking custody is a homosexual or transgendered or bisexual is wrong and it's really going to put a lot of children at risk.

COOPER: Karen, if Michael is ruled to be a woman still, is your case over?

DOERING: No. Absolutely not. We will appeal this as far as it needs to go. But if I could, I would really like to respond to several of the misconceptions that seem to be out there.

First of all, Michael suffered from a medical condition known as gender identity disorder where in his mind, his gender identity -- Michael Kantaras has always considered himself to be a male. However, the first part of his life, he happened to have a female anatomy. Now, the only -- the only effective medical treatment for this is gender reassignment. And gender reassignment has a phenomenal success rate. And any gender dysphoria that may have occurred prior to him undergoing this sex reassignment has been completely cleared up. And a transsexual person who has completed gender reassignment is as healthy, happy and able to function in society as anybody else. Michael's children...

COOPER: All right. I'm sorry to interrupt, Karen. We're just running low on time. And just in fairness, I want to give Peter the final seconds to respond.

LABARBERA: Well, you know, Terry (sic), that's all very politically correct, but I just attended a transgender conference where there were women who said they were really born boys and they are having their breasts removed. I mean, this is a politically correct fiction and we shouldn't put children at risk because of it.

COOPER: All right. I'm afraid we are going to have to leave it there. I know there is a lot more to be said on this topic. Karen Doering, thanks very much for coming in, and Peter LaBarbera, we both appreciate you being here tonight.

LABARBERA: Thank you.

COOPER: And before we say bye-bye-bye, we have out of this world news 'N Sync. Hey, do not change the channel so fast. Even if you don't care for 'N Sync, you will like this. Back in a minute.


COOPER: "Final Point" tonight: Did you ever notice that in TV pictures from space with the time delays and all that, that everyone looks like they're lip syncing?

Well, then who could be more at home way up there then teen idol Lance Bass of the guy-band 'N Sync. Turns out Bass is in negotiations with the Russian space program to take a trip into orbit for a television special. This is true. And it's got a nice ring to it, don't you think? 'N Sync 'N Space?

One sticking point, however, the Russians want $25 million. Hey, sign me up. I'll contribute. I'll bet a lot of folks, especially some parents out there I know, would love to kick in a few bucks to send Lance Bass into space. You know, for a few extra rubles, I bet we could get the Russians to keep him up there. Just a thought.

We'll also take e-mail contributions this evening about 'N Sync in space, the transgender custody case and about our earlier debate over the death penalty. Send an e-mail to the

I'm Anderson Cooper in New York. Ross Perot is back and he is next on "LARRY KING LIVE". I will see you back here tomorrow night. Bye-bye-bye.




Back to the top