Texas Mother of 5 Waits Behind Bars After Conviction Is Overturned

— -- Hannah Overton’s children say that they have just one question on their mind: Will their mom be home for Thanksgiving?

In late September, an appellate court in Texas overturned their mother’s 2007 conviction in the salt poisoning death of Andrew Burd, a 4-year-old boy that Hannah Overton and her husband Larry were trying to adopt. After six years in prison, Overton and her family rejoiced at the prospect of finally being reunited. Now, eight weeks since the higher court ruling and no reunion, family and friends of 37-year-old mother are left wondering why she is still behind bars?

“Now well into November we still wait once again for someone with authority to act rationally,” said Rod Carver, the Overton family’s pastor, “I put our people on red alert more than five times preparing to receive Hannah out of incarceration. It’s my opinion that this is not about Hannah or Andrew, it’s about a power struggle and an image issue with the forces that be.”

The district attorney of Nueces County, Mark Skurka, has already announced his intention to try Overton a second time on capital murder charges, but that statement came a month after the higher court’s ruling. Then, a week later, Judge Jose Longoria (who was also the judge in her original trial) ordered a hearing for her bond to be set.

As required by state law, Overton was finally transferred from a state prison to the county jail just miles from her Corpus Christi home. It seemed as though, after almost a month and a half, she would finally appear in court and her release on bond would be considered.

But the case hit another standstill when her defense attorneys filed a motion to recuse Longoria, citing financial and familial relationships with the Overton family that might give “the appearance that there would be either favoritism to Overton as a relative, or that the Court may at more harshly to appear not overly favorable to Overton.” Because the judge has already ruled against Overton on a number of occasions, her lawyers may have been more concerned with the latter argument. As evidence of the familial relationship, they included a video of Longoria dancing on a conga line at the wedding of his step-daughter and Hannah’s first cousin in 2005. At the end of the dance line, are Hannah Overton and her children.

“Once the recusal motion is filed, they hit the pause button,” says Brian Wice, a criminal defense attorney and legal analyst who specializes in appellate and post-conviction matters. “Recusal is really DEFCON 1. It’s the course of last resort.”

Now, Overton must wait for an administrative judge to hear arguments on whether Longoria should stay on the case. That hearing is currently set for November 12th. Whether that administrative judge or a temporary judge will step in to consider her request for bond remains to be seen.

Wice, who is not involved in the Overton case, says these delays are unusual. In his experience with post-conviction cases outside of Nueces County, he says that “Ultimately, the parties want to do the right thing and while you want to be expeditious, you also want to get it right. I’m not sure why the state has dragged his feet or why the judge has dragged his feet. That, to me, is unconscionable. And I can’t think of a reason why bond hasn’t been set or wasn’t set even before they came in to try to recuse Judge Longoria,” says Wice “This is a bad place to be for anyone caught in the criminal justice system.”

Wice, who has worked on such high profile cases as Minnesota Vikings running back Adrian Peterson and House Majority Leader Tom DeLay, says Hannah Overton may see more delays ahead.

The original prosecutor in the Overton case, Sandra Eastwood, was terminated for reasons unrelated to this case years after the trial concluded. Overton has accused Eastwood of acting unethically in her case, something Eastwood has denied repeatedly.

The appellate court did not rule specifically on Overton's claims of prosecutorial misconduct, saying that she deserved a new trial on claims of ineffective counsel.

However, three of the judges issued a concurring opinion saying the proceedings in the case were "problematic from the beginning". It cited issues involving Eastwood, who admitted to being an alcoholic and using diet pills at a hearing in 2012, as well as concerns that evidence that could have benefited Overton’s case was not presented at trial. It also cited issues with Overton's trial attorneys, who failed to call a salt poisoning expert to the stand.

At Overton's original trial in 2007, the prosecution portrayed her as a mother who had lost control. Frustrated with a naughty child, prosecutors said, she tried to punish him with seasoning mixed in water.

The defense presented the jury with a medical mystery. They speculated Burd might have had pica, an eating disorder characterized by an obsessive appetite, and that he accidentally poisoned himself by consuming a fatal amount of sodium.

Witnesses outside the home said they had seen Burd's bizarre habits, too. The day he died, Overton said she found him in the kitchen pantry but could not determine what he had consumed, if anything.

To find Overton guilty, jurors had to believe either of two scenarios: that she force-fed Burd salt knowing it would kill him or that she neglected to get medical help fast enough. They convicted her based on the latter argument, that she did not seek help quickly enough.

Overton told "20/20" in 2008 that she did not regret trying to adopt Burd.

"I wouldn't take that away," she said at the time. "He had brothers and sisters and a mommy and daddy, what he called his forever family, because we had to go through a lot of pain since then. It's not fair to him. Or to us."