by John Foxjohn
Chris Tortorice was thirty years old when he became involved in the prosecution of Saenz. At a slender six feet, with glasses and short brown hair parted in the middle, Tortorice looked like a mild-mannered if well-dressed geek. In truth, he was mild-mannered and likable with no hint of cockiness.
Born and raised in Beaumont, Texas, Tortorice attended Catholic schools through high school, and upon graduation took off for Texas A&M, and then law school at South Texas College of Law in Houston—one of the largest private law schools in the country. In 2010, U.S. News & World Report ranked the South Texas School of Law third in the country in trial advocacy.
After passing the bar and being licensed as an attorney in Texas in May 2005, Tortorice first spent a couple of years in the Navarro County DA’s office before becoming the Special Assistant to the Texas Attorney General. After a short stint there, he went to the U.S. Attorney’s Eastern Division of Texas headquartered in Beaumont. He’d just begun there when he became involved in the Saenz prosecution—an assignment that would consume four years of his life. Tortorice was a newlywed when the assignment began, and he and his wife had settled down in Beaumont. They both wanted children, but couldn’t have guessed that they would have two sons before Saenz even came to trial. To emphasize the type of person he is, Tortorice’s wife tells the story of how they’d planned home births for both of their boys, but each came so fast that their midwife didn’t make it in time. Chris had to deliver them both himself.
In 2008, Tortorice had prosecuted quite a few cases, ranging from child sexual assault to one where a man threatened to kill and eat the President and First Lady, but he’d never been involved in a capital murder case before. However, what Herrington got in young Chris Tortorice was an attorney who was intelligent and willing to work and put his all into the prosecution. Even more important, he got someone willing to learn what turned out to be the hardest part of the trial: the sciences involved in the case.
The third member of Clyde Herrington and Chris Tortorice’s prosecution team—later referred to as “Team Justice”—was Layne Thompson. Thompson, a short, slim man with a craggy face under steel gray hair, was the type of person who looked like he was going ten miles an hour while sitting still.
Born and raised in Lufkin and East Texas, Layne Thompson had attended high school with Herrington, then lit out for the University of Texas and its law school. Graduating in 1982, he took his degree to Houston and Harris County, where he said he worked in a large law firm for twenty-two years, defending doctors, hospitals, and medical offices against malpractice charges. Thompson, like Herrington and Tortorice, was a humble, intelligent man who got along well with everyone. In fact, in his humbleness, he neglected to mention that he not only had worked for that huge law firm in Houston, but had been a partner.
However, Thompson eventually tired of civil litigation. He said he’d had the idealistic belief that he would be a part of changing the world when he went to law school. But he wasn’t changing anything in civil litigation. His thoughts turned to prosecution and to the Harris County DA’s office. One thing Houston has is crime, after all, and it needs a lot of people to help change its world.
Thompson thought he could do this in a small way, one case at a time, one defendant at a time, and thus began a new stage in his career—criminal prosecution. It was a step down in salary, for sure, but people around Layne Thompson said that money had little bearing on what he did.
When he made the switch to the prosecution side of law, Thompson rediscovered his passion—the passion that had sent him to Austin and law school. He said, “As an assistant DA I had to make some tough decisions. Plea bargaining is difficult—figuring out what to offer someone. Can we save that person, or is he or she incorrigible with no way of saving or helping them? However, the first choice always had to be to protect society from that person.”
The pull of East Texas made Thompson want to return home, but in order to do that, many things—some of them out of his control—had to come together just right. First of all, he didn’t want to uproot his family until his son graduated from high school. Second, the Angelina DA’s office would have to have an opening, and Herrington would have to want to hire him. Thompson had laid the groundwork for that when he’d run into Herrington several years before. “They’re working me to death here and I want to come back home. Let me know if anything ever comes open.”
May came and his son graduated from high school, then out of the blue, the stars aligned. Clyde Herrington called to tell him that he had an opening. With his newfound passion for the law, his desire to change worlds, Layne Thompson returned to his roots. However, he soon discovered the roots he returned to would also want him to take part in a trial that would put his skills and abilities on display for the entire world to see.
Herrington said, “Layne coming to the Angelina County DA’s office was a Godsend. No way could Angelina County get an attorney of Layne’s caliber and experience under normal circumstances, but Layne was from Angelina County and that is the only reason I could get him.”
An Angelina grand jury had just indicted Kimberly Clark Saenz on several charges including five capital murders by injecting bleach into dialysis patients. In other words, this would turn out to be a medical malpractice case with the death penalty on the line.
As they prepared for the trial, Thompson and the defense team referred to as Team Justice had a couple of fears. First, they worried that the inordinate amount of science and medical expertise involved in the case would overwhelm the jurors and take their focus off the real facts in the case. Second, while by law they didn’t have to prove motive to convict, they worried that the jury wouldn’t be able to get past the why. It’s human nature to wonder, but could the jury get past it?
And last, Thompson worried about the youngest member of Team Justice—Chris Tortorice. He was worried because Chris would handle the brunt of the sciences in the case and he didn’t have a lot of experience in that area. He had a lot to learn and a short time to get there.
* * *
As the attorneys came together, the investigative side was also transitioning. Sergeant Abbott got help in the form of Jim Hersley and Bill Horton, investigators for the Texas Attorney General’s Office. Joe Reiker, a special agent with the U.S. Office of Inspector General, also provided a lot of help in the investigation. In fact, Reiker was instrumental in getting Tortorice in the case. Even before Herrington called the Attorney General, he’d heard of Tortorice and that he wanted to be involved in the Saenz case. Reiker had worked with Tortorice before and recommended him to Sergeant Abbott and Herrington.
They needed all the help they could get. One fact was becoming increasingly clear. DaVita Lufkin wasn’t the poster child for well-run medical clinics.
On April 28, 2008, once all the patients had left the clinic, DaVita “voluntarily” closed their doors in what was likely a preemptive public relations move. Would state and federal agencies have forced them to shut down anyway? Odds are good that they would have.
In a statement to the The Lufkin News in mid-May, DaVita officials said that they believed, “the events that led to our voluntarily closing the DaVita Lufkin dialysis center are the result of a criminal act by an individual who has been terminated and is no longer working at the center.” DaVita was playing the only PR card it had at that time, doubtlessly attempting to repair some of the damage done to their image, but the statement put the police investigators in a bind. The police department’s job was to investigate and convict whoever was responsible, and they weren’t about to make the same declaration DaVita did.
One of defense attorneys’ favorite ploys in trials is to blame investigators for having tunnel vision—for locking in on one suspect too soon, to the exclusion of others. Obviously DaVita’s statement was fuel for a defense attorney, and LPD was quick to counter it.
Lieutenant David Young, LPD spokesman, put a different slant on it in reaction to
DaVita’s statement. He said, “The investigation is focused on a lot of things, including an investigation into one person.”
There were those who also said that the DaVita statement was more than a mere PR move—that it was an attempt to take the focus off some other things that were going on at the time. For example, DaVita issued the statement on Thursday, May 15. The very next day, they received a letter from the Texas Department of State Health Services and the Centers for Disease Control, which had conducted an in-depth inspection of every aspect of DaVita Lufkin’s operation, stating the inspection found “potentially serious or life-threatening risks to patients requiring the highest level of corrective action to be carried out before reopening.”
Among the problems DHSH found were staffing and operational problems that didn’t meet state-required standards. However, those were far from the only issues that existed at the DaVita facility. The investigation revealed that DaVita Lufkin failed to monitor care provided to patients and did not immediately detect an increase in adverse events related to health and safety. It also found that the facility did not keep complete and accurate patient medical records, including patient deaths, which had not been properly documented. Included in these lapses was that cause of death or possible death trends among DaVita patients from September 2007 through April 2008 had not been documented. Along the same lines, the inspection found that the staff hadn’t properly documented an Adverse Occurrence Report Policy, which staff are instructed to fill out for “any unexpected event that is inconsistent with routine operation of a dialysis facility.” A review showed that although thirty-four patients were transported to a local emergency room in April, only nineteen of those patients had been documented by the facility.
DaVita Lufkin had some serious hoops to jump through before they could reopen, and the DSHS gave them ten days to submit a plan that corrected the problems.
One of the state’s requirements was that DaVita appoint four monitors—a physician, two nurses, and a dialysis technician—independent of the DaVita company. The doctor would oversee all operations and training, including verification of competency. The two nurses had to be on-site for five days a week for the first month the facility would be open. Their job was to ensure patient safety. The technician would monitor the facility’s existing water treatment system, machine maintenance practices, and all other related policies. DaVita would also have to pay these monitors’ salaries.
Furthermore, DaVita would also need to undergo what the state called a “Safety Net” program. This involved checks by nursing staff to ensure that correct dialysate, medications, blood flow rates, and safety checks were utilized.
To DaVita’s credit, they quickly did everything that the DSHS ordered. While they were closed, they’d been busing patients at DaVita’s expense to other area dialysis centers for treatment. They hired the monitors recommended by the state, fixed the problems, brought in a new facility director, and retrained their staff.
As the date for their July reopening neared, DaVita also renewed their PR machine. A Wednesday, June 18, newspaper headline read, DAVITA: CHARGES AGAINST NURSE UNPRECEDENTED. A gentle reminder to the public that someone was being charged and it wasn’t DaVita. The article even said, “Criminal allegations against a former DaVita nurse are unprecedented in the dialysis industry,” and went on to relate how DaVita itself had first spotted the problem and brought in their own investigators and monitors to try to find what the problems were. Michael Chee, the DaVita spokesperson, told the The Lufkin News about Saenz’s suspended nursing license for allegations of stealing Demerol from another employer, and called her “a very deceitful person. This was a person trying to hide their actions, we believe.”
He wouldn’t be the last person to call Saenz deceitful.
On Monday, June 30, the state gave DaVita permission to reopen in phases and gradually build up to operating at full strength. However, the independent monitors remained at the facility for six months to ensure that DaVita remained in compliance with state and federal guidelines.
The doors reopened for nine patients on July 2, 2008. Not everyone was happy about the reopening. That morning, Wanda Hollingsworth, daughter of Ms. Thelma Metcalf, one of the patients who died on April 1, led a group that included her daughter, nephew, and sister-in-law to picket the clinic’s opening. Passing cars honked as they waved signs. One sign said, BEWARE. THEY DON’T CARE. MY GRANNY WAS MURDERED THERE.
Hollingsworth left before the official opening. She later told The Lufkin News that DaVita had told them to get off the property. “I wanted to ask a few questions or at least listen to what [DaVita spokesperson Chee] had to say. [ . . . ] If he was so sure of himself and his statement, then he shouldn’t have had a problem with one of the victims’ family members being here. But with how they have handled things, it doesn’t surprise me. I want the facility to shut down, DaVita to take responsibility and the nurse who has been charged to serve jail time. You can’t tell me that someone else did not know what was going on.”
Before the clinic reopened, DaVita told the newspaper that the patients were anxious to come back home, as Chee put it. “All but two patients were anxious to return. That’s two out of 130.”
He didn’t say which two weren’t anxious to come back, but Ms. Marie Bradley was quick to put her name on that list. She told The Lufkin News, “I’m not going back. I’d be petrified. They tried to kill me.” Ms. Bradley had been rushed to the hospital from DaVita in cardiac arrest. She woke up at the hospital two and a half days later with no memory of what had happened.
July and August 2008 brought more deaths to East Texas. On July 15, Ms. Cora Bryant died in the hospital, and then on August 15, Mr. Garlin Kelley Jr. added his name to the list of possible murder victims.
As the investigation continued, The Lufkin News was finally able to get a comment from Sergeant Steve Abbott. In October he said, “This is a very complicated investigation with a huge amount of medical information involved and requires us to go outside our normal investigative resources to seek medical expertise for review of the facts.”
Lieutenant David Young added, “Once the police investigation is completed it will be presented before an Angelina County grand jury, which will decide whether or not to issue an indictment for Saenz.”
Obviously, with or without Saenz, DaVita had some problems at the clinic. However, the question paramount to the Lufkin Police Department and to the citizens of East Texas was this: Was DaVita responsible for the injury to the two patients, and the deaths of the others, or were those acts by one individual?
CHAPTER 12
BIRTH OF THE SCAPEGOAT
When someone dies of old age or natural causes, the family grieves, but they are eventually able to get on with their lives the way most of their loved ones would want them to. After all, painful as it may be for the ones left behind, dying in such a manner is a natural process—something we all expect.
But no one expects their loved ones to be murdered—especially not by the medical professional trusted to care for them.
Murder is a crime against nature, willfully robbing an individual of his or her remaining natural life, and taking that person away from his or her loved ones. Murder isn’t just a crime against a single person, but against that person’s loved ones, too.
This is the reason motive plays so big a role on TV crime shows. People really do yearn to know who committed the crime and, more important, why. It is almost impossible to go from grief to closure without answers to these questions.
At issue in the DaVita case was that the loved ones of the dead not only didn’t have the who or why answered, but didn’t even know if their loved one died from natural causes or if they were robbed of that person’s love by murder. They were in suspended animation. Their grief couldn’t end, and they couldn’t get on with their lives. Did the Good Lord call one of His own to heaven? Or did someone interrupt the natural process and kill
their loved one? If so, why?
Although the families weren’t getting any answers, as 2008 came to a close, Sergeant Steve Abbott and the investigation were starting to see some results. Even though they’d expected it, the results of the blind study conducted by the FDA still surprised them. They’d sent fifty-one numbered samples with the victims’ samples intermixed. The FDA had no idea which sample belonged to the victims. However, the report they sent back indicated that every single sample from a victim showed traces of bleach, while not one of the other random samples showed any.
Although the large biohazard bags containing the patients’ bloodlines were all labeled with the patient’s name on the outside, Sergeant Abbott had gone the extra mile and had each of the bloodlines tested using DNA.
The DNA lab compared blood samples from the lines themselves to each individual patient’s blood. (In the case of Ms. Few and Ms. Metcalf, for whom blood samples weren’t available, DNA was compared to blood from daughters of the victims.) DNA results indeed confirmed that the bloodlines inside each bag actually belonged to the person whose name was marked on the outside.
Along with this, Abbott had hundreds of people to interview, including all of the DaVita employees. He even went to the trouble to interview ex-employees who’d been fired by DaVita. This also turned out to be a smart move in the investigation.
