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Insanely Guilty

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At that point, Crowder had been practicing law for six years. For such a big case, she had to bring in Robert Udashen. That afternoon, Darlina Crowder and Diaz drove to Dallas to meet with her mentor.

Attorney Robert Udashen had made national headlines in October 1980 when he and veteran McKinney attorney Don Crowder successfully defended Candy Montgomery in the ax murder of Betty Gore. Their strategy was self-defense, not insanity. Gore had confronted Montgomery about an affair with Gore's husband and attacked first. The problem: Montgomery had struck Gore 41 times.

Udashen hired a psychologist to evaluate Montgomery. He determined she had flashed back to a childhood trauma and lost control when Gore told her, "Ssshhh." The case would eventually become the subject of a book and a movie.

It was Don Crowder, Darlina's father-in-law, who inspired her to go to law school. Days after Darlina passed the bar exam in November 1998, Don committed suicide. Darlina Crowder says that some people blamed his death on the Montgomery case. She doesn't.

"I think he was extremely proud he won the case," she says, "but I don't think he realized the severity of public reaction. A lot of the people in this county didn't care for him anymore."

After Don Crowder's death, Darlina Crowder turned to Udashen when she needed advice. (She divorced Don's son in 2002.)

Boyish and athletic, Udashen, 51, doesn't look much older than he did when he defended Montgomery. Since that case, he's developed a reputation as a lawyer's lawyer -- great in the courtroom, good at appellate work and an excellent teacher -- but before the Diaz trial he'd handled only two insanity cases. One he lost; the other didn't make it to trial.

In Texas, the "not guilty by reason of insanity" defense is raised in less than 1 percent of all felony cases. Only 26 percent of those cases in which it is raised result in a NGRI verdict.

Texas Penal Code section 8.01 states: It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. Though many criminals have mental conditions, the problem is the definition of two words, "know" and "wrong."

According to University of Texas law professor George Dix, the right-or-wrong standard dates back to 1843, in the so-called M'Naghten case. British woodworker Daniel M'Naghten shot and killed a secretary during his assassination attempt on the prime minister. He was acquitted; doctors said that he suffered from what would now be called delusions of persecution symptomatic of paranoid schizophrenia. Under M'Naghten, if the accused is unable to tell the difference between right and wrong at the time of the crime, he should be acquitted.

In the 1960s, a second "volitional" prong was added to Texas law, absolving a defendant if he acted on an "irresistible impulse." But after the acquittal of John Hinckley for the attempted assassination of Ronald Reagan in 1982, more than 30 states, including Texas, eliminated that prong and tightened their insanity defense standards.

"Texas is one of the more restrictive definitions in the country," Udashen says. Periodically, the state legislature looks at changing the law to "guilty but insane" but has taken no action.

As Udashen and Darlina Crowder talked to Angel Diaz, they became convinced that insanity was his wife's only defense.

"On the other hand," Udashen says, "I knew what happened to Andrea Yates. That looked like a classic insanity case. And they lost. Lisa Diaz didn't have any of that. I knew it would be hard, but there was no other defense to raise."

Darlina Crowder took on the role Udashen had played years earlier, working with Diaz and other witnesses. Udashen focused on evidence and trial strategy. He had a risky decision to make: whether to use the videotapes of Diaz.

"If I decided not to use them, the jury wouldn't see them," Udashen says. "There was a lot of good stuff for me but also some bad things. In the first tape, she can answer questions. She doesn't seem insane." And on the last tape, when the questioner asks Diaz if she would have killed her children if a police office had been present, she answers no. That might indicate to the jury that Diaz knew what she'd done was wrong.

While Udashen struggled with those questions, he brought in psychiatrist Doyle Carson and clinical psychologist Rycke Marshall to probe more deeply inside Diaz's world.

Quizzing prospective jurors for the Lisa Diaz capital murder trial last August, Udashen and Darlina Crowder realized they were facing tough odds.

"People were saying, 'I would never find someone not guilty by reason of insanity if they killed their kids,' " Udashen says. "People didn't like the insanity defense. They didn't like psychiatrists and psychologists. They felt there were no standards." The judge excluded 40 of about 70 potential jurors for cause.

Diaz had remained on and off suicide watch. In January, Carson began treating her with antipsychotic medications as well as antidepressants. Though Diaz showed some improvement, she remained paranoid and suicidal as the psychiatrist struggled to find the right treatment approach.

Carson says psychiatry used to regard psychotic delusions like Diaz's as psychologically based. He no longer believes that. "If someone is psychotic, I think it is a biological condition," Carson says. "I think it was a biochemical reaction operating inside of her. Things went awry somewhere in the central nervous system. I don't see people recovering from that kind of condition without medication."

Though the state wasn't seeking the death penalty, Diaz faced an automatic life sentence if convicted. Her psychotic fog had lifted enough for Diaz to contemplate her future. "She worried about ending up like Andrea Yates," Udashen says.

Udashen thought the surprising acquittal of Deanna Laney, whose Tyler trial in March 2004 was covered by Court TV, made his job harder. "I heard this from the jury panel: 'It's not right; she got off,' " Udashen says. "There's this backlash that I had to deal with."

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