by John Foxjohn
−Restrained from threatening Kevin in person, by telephone, or in writing to take unlawful action against any person.
−Restrained from placing one or more telephone calls, anonymously, at any unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication.
−Restrained from causing bodily injury to Kevin or to a child of either party.
−Restrained from threatening Kevin or a child of either party with imminent bodily injury.
−Restrained from visiting with a child in an unsupervised manner.
From the affidavit and the restraining order, it was clear to see that Kevin Saenz feared his wife. However, at the time the detectives didn’t know that Kim had also told her former DaVita coworker Werlan Guillory that her husband had accused her of harming the patients at DaVita.
Kimberly Saenz was about to receive yet another blow. For almost three years, she had skirted the suspension of her nursing license in spite of her poor track record. From August 2005, when Woodland Heights filed the charges against Saenz’s nursing license for stealing Demerol, she had worked as a nurse at Wright Choice Home Health, The Lufkin State School, The Children’s Clinic of Lufkin, and the DaVita Lufkin Dialysis Center without those charges ever appearing on her nursing license.
Finally, on May 14, 2008, the Texas State Board of Nursing suspended Saenz’s license.
* * *
Sergeant Steve Abbott realized that he needed help with this investigation, so he sought out Clyde Herrington, the Angelina County district attorney.
The DA’s office worked well with the Lufkin Police Department and its detectives. Herrington knew Sergeant Abbott, and the fact that the detective supervisor who didn’t usually handle a caseload was now investigating a case surprised him—but not nearly as much as the tale Sergeant Abbott told him. Herrington had been in the DA’s office at the time for twenty-eight years, eighteen as district attorney, and though he thought he had seen and heard just about everything, never before had he encountered a crime like this one. After Sergeant Abbott finished telling him everything they’d found out so far, Herrington’s first coherent utterance was, “Holy cow, that can’t be true.”
It was the same reaction from everyone who heard the story. It was almost unbelievable anywhere, but especially in Lufkin. Things like this just didn’t happen here.
What neither Sergeant Abbott nor Herrington knew at that moment was that things like this had never happened anywhere.
Herrington knew he would need every ounce of his experience for this case. He and Abbott were facing some serious problems with the investigation. As soon as Herrington began to look into instances of doctors, nurses, EMTs, or other medical people being accused or indicted and put on trial for killing or causing harm to patients, he found there were far more cases than he’d anticipated. Even so, however, these individuals were hardly ever convicted, owing to a lack of evidence.
As Herrington pondered what evidence they had and what to do with it, he began calling people to ask their opinions—medical and legal professionals, anyone who might help him. His apprehension about the case grew as he discovered that no one—or at least no one anyone had ever heard of—had used bleach as a weapon before. And there was still worse news for the prosecution. Herrington discovered that bleach doesn’t act like other solubles in the blood: it rapidly mixes in and attaches itself to all the different components of blood and becomes undetectable.
At this point in the investigation, Herrington and Abbott were looking at two cases of aggravated assault on Ms. Risinger and Ms. Rhone, but Herrington also recognized another looming problem. Both his witnesses were getting on in age and were obviously not in the best of health to begin with. After talking to Dr. Nazeer, the medical director of DaVita, Herrington found out that the average dialysis patient lived only three or four years after starting treatment. From a legal standpoint, this was a problem because if the case was as extensive as it appeared to be, it could take several years before it came to trial. Without the witnesses, Herrington knew he might not have a case. He took advantage of a new law that allowed prosecutors to video a witness’s deposition if there was reason to believe that health reasons might prevent that witness from testifying at a later date. He had Dr. Nazeer put the patients’ medical conditions and the average life expectancy of dialysis patients in a document to him, and then used that as a basis to get video depositions of the two witnesses. This decision proved crucial in the long run—the case ultimately took four years to come to trial, by which time one of his witnesses had indeed passed away.
By this time, Christy Pate from the Lufkin crime scene unit had discovered Ms. Few’s bleach-laden 3ml syringe, and the investigation tilted from aggravated assault to murder. However, the main question was if someone had murdered Ms. Few using bleach, what about the others on the list? Abbott had syringes and biohazard bags with other patients’ names on them.
Herrington joined Abbott in searching for a lab that could handle their specialized kind of evidence. They needed to find a crime lab that could accept the bloodlines and syringes the police had confiscated from DaVita, test them, and tell investigators definitively that bleach was present in them.
At first blush, if Kimberly Saenz had indeed killed the DaVita patients, it appeared that she might have found the perfect weapon.
This lack of crime lab left Herrington with a dilemma. He might be able to convict Saenz on the first two aggravated assaults. They had two very good and credible eyewitnesses who would not be swayed from their testimony. They also had the CSU testing with the positive bleach results of the syringes found in the sharps containers, but since that testing hadn’t been done in a laboratory setting with scientific equipment, and with trained personnel, it could be challenged in court.
They couldn’t convict Saenz of Ms. Few’s murder or any of them on the list—if she was guilty of them—without valid, scientific evidence. Herrington continued looking for someone to handle the testing. Finally, in the middle of May, just about the time Saenz’s nursing license was suspended, Herrington uncovered a possibility that he’d never previously considered: the FDA, the Food and Drug Administration. The FDA had the only lab that thought they might be able to test the bloodlines and syringes to determine if a chlorinating agent were present. However, they weren’t certain they could do it, and even if their labs did reveal a “chlorinating agent,” that would not be good enough in trial. They needed to be able to say that the lines and syringes held bleach. Herrington followed up with the CDC, the Centers for Disease Control, who said they thought they could handle the delicate medical analysis to determine whether the patients had been injected with bleach, and if so, what effect the bleach had on the ones injected.
Still, Sergeant Abbott exercised caution. Because of the unknowns in whether the FDA and the CDC could handle the tests on the possible evidence, Sergeant Abbott only sent the FDA Ms. Rhone’s bloodlines and syringe. When the FDA was through with the evidence, they would in turn ship the evidence to the CDC to see if they could handle their part.
Abbott and Herrington had witness testimony of Ms. Rhone’s aggravated assault, as she was one of the two patients whom witnesses claimed to have seen Saenz inject. (For some reason, DaVita had not kept the bloodlines of Ms. Risinger, the other patient.)
The report he got back from the CDC and the FDA on Ms. Rhone’s bloodlines and syringe took some pressure off Sergeant Abbott and Herrington. These agencies found traces of bleach not only in the bloodlines, but also in a syringe that had Ms. Rhone’s name on it. After these results came back, Abbott sent them the rest of the evidence to test, but he did it in a way that would be crucial. He sent the evidence as a part of a “blind study.” He sent fifty-one samples with no identifying marks except numbers marked from 1 to 51. Among the fifty-one was the evidence, and the lab technicians had no idea which samples belonged to the victims.
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br /> However, before they received the test results, Herrington discovered some other problems. After studying what other agencies had done with incidents of medical professionals accused of hurting their patients, one thing was clear: most of the convictions came not from a jury, but with a confession. Their best chance in this case would be to get Saenz to confess. By that point, there was little doubt in any of the investigators’ minds that she was at least guilty of the first two aggravated assaults.
Fortunately they also had Sergeant Abbott’s quick wits to rely on. Early in the investigation, using information obtained from Kevin Saenz, Abbott had obtained search warrants for Kimberly Saenz’s home computer as well as her parents’ computer. Her husband was the one who’d told investigators that his wife sometimes used her parents’ computer—a habit that came back to haunt her. After retrieving the computers, investigators stored them until they could be examined by computer forensic experts. The results of the computer analysis chilled them. At 4:14 in the morning on April 2, 2008, the morning after the deaths of Ms. Strange and Ms. Metcalf, someone had done a Yahoo! search on bleach poisoning. This search was followed up on May 5, by “Can bleach be detected in dialysis lines,” and “Dialysis patient’s symptoms of bleach poisoning.”
The evidence began to pile up, but the investigators still didn’t have enough to convict Saenz of murder. In most cases, an autopsy of the victim helped in determining the cause of death. DaVita had given Abbott a list of patients who’d died at DaVita, but none of the patients who’d died had received autopsies. Also, he only had bloodlines and syringes for Ms. Strange, Ms. Metcalf, and Ms. Few, and he believed that all three of them had been murdered. At the time, Mr. Kelley and Ms. Bryant were still alive. But the three deaths that he had evidence on had problems with their death certificates. All three certificates listed their deaths as natural causes. At the time of their deaths, there had been no reason to think otherwise, so there was no reason to do autopsies. All the patients had been of advanced age, with health problems in addition to the renal failure that required them to take dialysis treatments.
Herrington, in an interview later, shook his head and sighed as he said, “It took us a long time—months—to understand what we were dealing with. We continued to learn for four years.”
Indeed, nothing in the Saenz case proved easy. In the meantime, they had two patients in the hospital, Mr. Kelley and Ms. Bryant, and they needed evidence from them. At minimum they thought these two would turn out to be aggravated assaults, and if they died—and the doctors weren’t giving them any chance—they’d have two more murders on their hands.
CSU Christy Pate went with Sergeant Abbott to the hospital to talk to the doctors about the patients’ conditions, to have blood collected, and to discuss where and how the blood needed to be preserved and shipped for testing. She was amazed when Abbott, her sergeant, who had no prior medical knowledge or experience, began talking with the doctors in a medical language she didn’t understand. It was obvious to her, and to the doctors, that Sergeant Abbott knew as much about this as they did.
Once they left the hospital, Pate couldn’t hold back any longer. She asked Abbott where and when he’d learned all the medical stuff. His simple answer was one that epitomized Sergeant Abbott. “I’ve been studying.”
After the trial ended, other LPD officers said that medical experts on the subject of bleach and its effects on people and blood called to consult Sergeant Abbott about it—not each other.
Sergeant Abbott endeavored to keep an open mind as the case began. However, the longer he investigated, the more the evidence began to pile up, and the evidence kept bringing him back to Saenz.
With enough evidence in place, the investigators were finally able to make an arrest. Sergeant Abbott arrested Kim Saenz on May 30, 2008, for two counts of aggravated assault with a deadly weapon, for allegedly injecting Ms. Risinger and Ms. Rhone with bleach. These were the two patients that both witnesses had claimed Saenz injected.
Instead of having a lawyer appointed, Saenz and her family decided to hire an attorney, Scott Tatum of Lufkin’s Tatum & Tatum law office. Quite a few people in and around the courthouse said that Scott Tatum was a darn good attorney. He was intelligent, knowledgeable, direct, and a veteran of many court battles.
Tatum handled the depositions from Ms. Hall and Ms. Hamilton, the two witnesses who claimed to have seen Saenz inject bleach into the patients, and he posted her bond—a $50,000 attorney bond on each count, for a total of $100,000. Saenz was released from jail on June 2. One of the stipulations of the bond was that she would not work in any way in or around a medical facility.
As the news of Saenz’s arrest and the allegations began sweeping the country and parts of the world, the mood inside Herrington’s office wasn’t one of celebration. He and Sergeant Abbott thought they had a serial killer on their hands, and they were earnestly hoping for a confession. That was the real reason they had carried out the arrest when they did. Unfortunately, none was forthcoming. Kim Saenz had an attorney, and they couldn’t even talk to her.
CHAPTER 11
A CALL FOR HELP
Clyde Herrington’s unthreatening appearance, along with his soft-spoken, slow speech pattern and the friendliness of his bearing and gestures, gave him the look of an old country attorney from Central Casting. But while his even temperament and affable nature might conjure up the image of a bumbling bumpkin, the truth was far different. In fact, Clyde Herrington was an intelligent, shrewd, and wily veteran of the courtroom.
Herrington had a deep dedication to community welfare—especially when it came to the victims of crime. Most people who came into contact with him knew instantly that Herrington actually cared. And he was ethical—he never wanted to stand in front of a jury and ask them to do something he wouldn’t do if he were in their place. One of his biggest fears was to discover he’d put an innocent person in prison.
In his own words: “People sometimes think a trial is not about the evidence but who is the best attorney. When that happens, guilty people either go free or innocent ones go to prison.” According to Herrington, “A prosecutor’s job is not to convict but to see justice is done.” As he says, “The purpose of a trial is to find the truth.”
Herrington grew up blue-collar in Angelina County. His grandfather worked at Lufkin Industries and his father followed suit for forty-two years. His mother worked at JC Penney. There were no silver spoons awaiting him at birth; like many East Texas boys, he was expected to work and do the chores.
As he grew up, tending farm animals had an effect on him that lasted all his life. Unlike his grandfather and father, he didn’t want to work at Lufkin Industries—he wanted to be a veterinarian. In high school he participated in the Key Club and the Kiwanis Community Service Club, and spent four years in FFA, Future Farmers of America.
After high school, Herrington attended two years at Angelina Community College in Lufkin, and then traveled twenty miles north of Lufkin to attend Stephen F. Austin State University in Nacogdoches. There he took a slight turn from his veterinary dream. Although he majored in agricultural science, he minored in education with a plan to obtain a teacher’s certificate to teach agriculture in school.
Although he did, in fact, obtain a Texas teacher’s certificate, his path diverged even further. An uncle of his, who was a professor at Baylor University in Waco, Texas, convinced him to apply to law school. In an interview after the trial, Herrington said that, growing up, he’d never thought about becoming an attorney. With his uncle’s encouragement, he said why not, and applied to the Baylor Law School. He was actually doing his student teaching in agriculture at Hudson High School, just west of Lufkin, when he was accepted.
After earning his law degree from Baylor in 1981, Herrington returned to Lufkin to settle down. He went to work for a local defense attorney and remained at the firm for three years. Defense wasn’t for him, though—he didn’t like it when
the court appointed him to represent bad people. In 1983, then–district attorney Gerald Goodwin, who’d had his eye on Herrington since he’d graduated from law school, hired him to work for Angelina County as an assistant.
In 1990, Goodwin stepped down as district attorney in order to run for election as a district judge in the county. In doing so, he left an unexpired term, and Texas Governor Bill Clements appointed Clyde Herrington to serve out the remaining time as the district attorney of Angelina County until the next elections were held.
When the time came for the DA elections, however, Herrington ran unopposed. As it turned out, this wouldn’t be an unusual occurrence. Herrington ran for DA five times and never once had an opponent in the general election. When he finally left the DA’s office on December 31, 2012, it was because he retired, not because he’d ever lost.
Never in his law career had Herrington ever been involved in a case remotely like that of Kimberly Clark Saenz. In an interview after the trial, he said, “I really don’t think prosecutors should avoid cases because it’s tough, and I knew from the moment Abbott had first walked into my office that this one would be the hardest of my career.”
Unfortunately for Herrington, Saenz’s arrest and charge didn’t lead to the confession he’d hoped for. He felt secure that he could convict Saenz on the two assaults, but he also believed she’d murdered patients, and he wasn’t going to stop until he could find the truth.
Although he’d finally found the two government agencies that were testing the evidence, the FDA and the CDC, Herrington was dismayed to realize that both agencies were exempt from processes—meaning they couldn’t be subpoenaed to testify in court. And if he couldn’t get them to testify to the results of the tests, no matter what those results might be, that would put the investigation back to day one.
So Herrington called on an old friend—Malcolm Bales, the U.S. Attorney for the Eastern District of Texas—reasoning that if the U.S. Attorney’s office, also a federal agency, was involved, it might help smooth the way to get the other agencies to testify. Herrington even knew of an assistant U.S. Attorney who worked in the East Texas area who wanted to be a part of the case. He just didn’t know if he could get him. As it turned out, he’d get lucky on several fronts with that phone call to his old friend. That phone call produced help in the form of a young attorney by the name of Chris Tortorice (pronounced “ta-TORres”).
