A sharply divided Texas appeals court on Wednesday threw out the death sentence of a woman convicted of killing her newborn son.
The court upheld the woman's conviction for murder, but it said that prosecutors misstated to jurors her likelihood of being a future danger to society before deliberations began on the sentence.
Lawyers for the woman, Kenisha Berry, argued that she had no previous criminal record, and defense experts testified that she posed a low risk of being a future danger.
The 5-4 ruling from the Texas Court of Criminal Appeals means Berry will serve a life term for the 1998 smothering death of four-day-old Malachi, who was found abandoned and bound with duct tape in a trash bin.
The case went unsolved for five years until Berry was identified as the mother of a newborn girl found alive but abandoned and covered with fire ants in a ditch in 2003.
Berry, a former corrections officer and day care worker, consented to DNA testing that confirmed she also was the mother of the boy.
A jury in Beaumont convicted Berry of murder and sentenced her to death. Texas is the US's busiest death penalty state.
In a written dissent to Wednesday's ruling overturning that sentence, four appeals judges said they would have upheld the death penalty for Berry and suggested the majority argument could exempt from the death penalty most parents who kill their children.
"She cold-heartedly murdered one child and attempted to murder another child on different occasions five years later," Judge Barbara Hervey wrote in the written dissent.
"She is unremorseful and fails to take responsibility. This evidence satisfied every measure of future-dangerousness that this court has applied," she said.
Berry has three other children who were not harmed.
She was one of 10 women on Texas' death row.
Three women are among the 393 convicted killers who have been executed since the state resumed carrying out capital punishment in 1982. A woman, Cathy Lynn Henderson, is set to die next month for the slaying of an infant she was babysitting near Austin.
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