Killer Nurse

by John Foxjohn

  However, the baby would grow into a sixty-three-year-old intense, tenacious attorney. The short, solid attorney had thinning, short gray hair, full cheeks, and high blood pressure, which revealed itself in his face when he was angry or upset. His attitude at times seemed like that of a tenacious little bulldog who would sink his teeth into something and not let go until he was ready.

  Although intense and focused both in and out of the courtroom, Taylor had an unpretentious, engaging personality. He talked to people and made friends. At times he could be seen talking to an attorney or judge, and the next time a bailiff. He engaged just about everyone in conversations, including long discussions with the janitor.

  In order for someone to earn respect, they first must respect others, and this seemed to be a Taylor calling card. He appeared to truly respect other people’s feelings, opinions, and jobs—no matter what they did. Even the prosecution team thought he was genuine. When they spoke about Steve Taylor, it was always with respect. Not a single attorney from the prosecution team ever doubted that a client of Taylor’s would get anything but the absolute best defense from him that was humanly possible. At the same time, they didn’t need to worry about his conduct in a courtroom. They also never doubted that he’d be honest and respectful in his dealings with everyone.

  Kim Saenz’s other lawyer, Thomas Ryan Deaton, was another story.

  Deaton had been raised in Lufkin and looked East Texas country all the way from the cowboy boots he wore with his suits to the smokeless tobacco he dipped and spit during court sessions. He was one of Lufkin’s all-American boys—all about hunting, fishing, dipping, and football—an image he seemed to promote.

  In many ways, Deaton was like that person who was born on third and thought he hit a triple. Without a doubt he had to work in high school, college, and law school to get where he was—college degrees aren’t given away and neither are doctor of jurisprudence degrees or admittance to the state bar. But he didn’t have to scrape or pinch pennies getting there, and the probability of eleven years of night school to obtain his goal likely would’ve never entered his mind.

  Deaton’s list of high school activities can make even an active person tired. Besides starting on the football team’s offensive line, he also played basketball, ran track, and was a member of the LHS student council; the Key Club; and Kyssed, the high school’s drug-free club. He was also a member of Young Life, a national program that benefits all high school students, but is a multicultural ministry focused on kids in diverse cultural communities and those in economically depressed areas. His activity on the football field came to the attention of several colleges, and even with all his extracurricular activities, Deaton graduated with honors. This didn’t hurt when Tulane, a very prestigious private research university in New Orleans, came calling to offer him a football scholarship—a fact that he was rightfully proud of.

  After graduating from Tulane, Deaton married his high school sweetheart, then followed in his father’s footsteps to law school. Like prosecutor Chris Tortorice, Deaton attended the prestigious South Texas College of Law in Houston. When he graduated from law school in 1998, he returned to his East Texas roots and the newly created Deaton & Deaton law firm.

  Quite a few people seemed to think Deaton was conceited and full of himself. The polite word most used for him was “cocky.” It certainly appeared that Deaton had never read Dale Carnegie’s How to Win Friends and Influence People—especially when it came to law enforcement. He wasn’t bashful about making comments and accusations against law enforcement in the newspapers.

  Taylor, the most experienced attorney and a death penalty specialist, had been assigned by the court to defend Saenz. But Deaton was Saenz’s attorney of choice, the one she paid and listened to, and whose directions she followed.

  Few people in the Angelina Courthouse had doubted that Deaton would be first chair in Saenz’s defense. They said that his ego wouldn’t let him take a backseat to Taylor. If he lost the case, no one would blame him—the state had the evidence against her. However, he’d be a big hero if he won, and everyone recognized the size and scope of the trial.

  Some people said that, for Deaton, the trial was less about Saenz’s innocence than it was about what he would get out of it. At one point, Deaton had attempted to back out of the defense because he wasn’t getting paid enough, but Judge Bryan had already given one continuance because of a change of attorneys and wasn’t going to give another.

  People on the defense team said that Deaton was so confident that he was going to get Saenz off that he had plans to hire her to work at his law firm when the trial was over—once she returned from the cruise that, rumor had it, she’d already booked. This would be the prelude to a $10 million lawsuit against DaVita, which, of course, her attorney would get a hefty chunk out of.

  Personality issues aside, some professionals in the Angelina County Courthouse doubted whether Deaton had the ability to win the trial.

  According to his adversaries, he also had a problem with leading questions. A leading question is one that lets the witness know what answer is expected of them. “Did you have a hamburger for lunch?” is an example of a leading question. It’s obvious from the question what the expected answer is. In contrast, an open question would be: “What did you have for lunch?”

  Leading questions are allowed when attorneys cross-examine a witness but not during direct examination, and Deaton had a reputation for either being unable or unwilling to conform to this legal requirement in the courtroom. Attorneys in the DA’s office knew this.

  But leading questions weren’t all Deaton had a poor reputation for in the DA’s office. When the office attorneys opposed him in court, they had to be ready for what they called Deaton’s propensity for “misrepresentation of facts.” And then there was the issue that one prosecutor predicted. He said, “In the Saenz trial, we will mostly present circumstantial evidence with forensic experts to testify to the veracity of that evidence. Deaton has to counter that testimony with his own experts, and Deaton’s understanding of the rules of evidence is as bad as any attorney I’ve ever seen.”

  CHAPTER 14

  INEFFECTIVE COUNSEL

  After Kimberly Clark Saenz’s indictment, Clyde Herrington could easily have asked for no bail to be granted. The posting of bail is not required in capital murder cases. However, if Herrington asked for no bail, the defense attorney could have filed a writ of habeas corpus, a legal action that requires the arrested person to be brought before the court. The writ ensures that people aren’t detained unlawfully or without evidence.

  If the writ was filed, Herrington would then have been forced to put on his case before the court. With all of his expert witnesses out of state, it would have cost thousands of dollars to get them to Lufkin for the writ hearing, then he’d have to do the same thing again when the trial actually began—all at the cost of the taxpayer. Plus, he wasn’t ready to put the evidence on yet. For all those reasons, he didn’t make a recommendation for no bail.

  Judge Bryan had set her bail at $500,000, which required her to post 10 percent, i.e. $50,000 if they used a bail company.

  However, Texas is actually one of the few states that allow attorneys to act as bail bond agents. A bond is simply a guarantee that the accused will show up in court if let out of jail. In most cases, a bail bond company handles the bonds. The accused or family of the accused puts 10 percent of the bond down, and then the bail bond company guarantees the rest to the court. The 10 percent paid to the bond company is their fee for getting the accused out of jail. This is money the person will never get back. In Saenz’s case, she or the family needed to post 50,000 nonrefundable dollars. If the person skips and doesn’t appear for the court hearing, the bond company would be required to pay the entire bond.

  Attorney bonds in Texas work almost the same but with an exception: the money paid for the bond is supposed to be used in the person’s defense. Howeve
r, the American Bar Association is not an advocate of the Texas law that allows the practice. The Association believes that the practice can lead to conflicts of interest, and pit the attorney’s own financial interests against his or her duty to fight for clients in court.

  Because Herrington didn’t oppose bail, and Deaton posted it for Saenz, the country got to see a rarity—an accused serial killer walking the street for almost four years waiting for trial. The fact that Saenz, accused of five murders and of severely harming five others, had the run of the courthouse was a topic much discussed by courthouse people as well as citizens.

  Defense attorney Steve Taylor said after the trial, “Jacob Hopper’s college fund was raided to pay Deaton, and he was devastated.” Jacob was Saenz’s son from her first marriage. Cheryl Pettry, a mitigation specialist, said, “Saenz’s parents apparently had control of Jacob’s college fund and used it for the bond.” She echoed what Taylor said about the young man being devastated.

  Saenz also had some stipulations beyond money set on her bail. She would have to wear a GPS tracking device on her ankle, and she was limited to movement inside the county line. She was not allowed to contact any of the victims, and like before, she was not to seek jobs in the medical profession.

  After Judge Bryan set bail, the date of April 5, 2010—almost exactly a year later—was set for the beginning of jury selection for the Saenz trial, later moved to August 9, 2011, for voir dire, and September 2011 for the trial.

  However, in early August 2011, the defense team again asked for a continuance—Ryan Deaton said that he hadn’t had time to properly prepare for the expert witnesses—and it surprised a lot of people when the judge granted it. Very few people knew that this was the right thing to say to Judge Bryan at that moment.

  The Saenz investigation and case involved many interesting and unique people, but none like Judge Barry Bryan.

  Physically, he tended not to conform too slavishly to any one look. His silver hair was sometimes on the short side, and sometimes longish. Sometimes he had a silvery half-beard, and sometimes he was clean-shaven. He seldom wore a robe in the courtroom and his bailiff didn’t announce his arrival. He just opened the door and walked in as he waved everyone to remain seated. Pretentious, he was not.

  When asked about his childhood activities growing up, Bryan’s response was, “Any club worth being in wouldn’t have me,” a twist on the classic Groucho Marx line. Judge Bryan may never have been in the Boy Scouts, but he did serve as the district chairman of the Boy Scouts as an adult.

  In many ways, Bryan’s career path mirrored Steve Taylor’s. After high school, he built houses for several years. Then he graduated from Stephen F. Austin in Nacogdoches in 1986 and then law school at SMU.

  He was a criminal defense attorney from 1990 until 2003, and like Taylor, was certified in death penalty cases. He’d defended several clients charged with capital murder in Angelina and Jasper Counties, but never went to trial.

  Prior to 2003, he was a member of the Angelina County Bar Association, State Bar of Texas, National Association of Criminal Defense Lawyers, and the National Homebuilders Association. In 2003, he became the Angelina County Court at Law 2 judge. He was the County Court judge until 2006, when Texas Governor Rick Perry appointed him to serve the unexpired term as judge for the 217th district court in Angelina County.

  As the presiding judge of the 217th district court, Bryan now had the responsibility of overseeing the most high-profile case in the county’s history. However, an unrelated case in Angelina County that occurred in June 2005 before he became district judge seemed to have an influence on Judge Bryan’s decision to grant Deaton’s request for a continuance.

  In late May 2011, three months before the Saenz trial was scheduled to begin, Gerardo Flores, serving two life sentences for stomping his pregnant sixteen-year-old girlfriend’s stomach, causing the deaths of their unborn twin boys, was brought back to Angelina County.

  Flores was scheduled to appear before Judge Bryan, who heard an argument for ineffective council against the original trial attorney. The appeal’s attorney believed the original attorney—Ryan Deaton—was ineffective because of the way he handled the expert witnesses in the Flores case.

  Deaton told Jessica Cooley of The Lufkin News, “That is pretty common in a case like this where a life sentence is issued,” but when Deaton asked the judge for the extra time to properly prepare for the expert witnesses, the judge allowed it. Judge Bryan’s worst enemies would say that he was fair, and if Deaton was ineffective in the Saenz trial, it wouldn’t be because Bryan hadn’t allowed him the time to prepare. The judge set a new date of March 5, 2012, for the trial.

  * * *

  Trial preparations were a different process for both sides. Clyde Herrington, though he was the clear leader of the prosecution team, delegated areas of responsibility. Layne Thompson would handle all the questions about the water in DaVita, the expert witnesses, and everything to do with the water purification process. Chris Tortorice would handle the sciences and the medical experts in the case, and Herrington would handle all the rest of the witnesses. It was an equitable partnership of the humongous caseload.

  While Herrington was taking care of the legal end, he gave a lot of credit to Sergeant Steve Abbott. “Abbott’s the most modest person I’ve ever seen,” Herrington said. “He’s quiet but very bright. Not only that, but he has the ability to get people to cooperate with him.” Herrington went on to say, “Abbott was able to work well with the different law enforcement agencies that were helping in the investigation. In a lot of cases, there are jealousies and rivalries with law enforcement groups, but not in this case, and Abbott was the reason.”

  He also pointed to Abbott’s tireless work ethic. In January 2011, Abbott moved his office from the police department to the courthouse. Herrington said, “It was nothing for Abbott to work from seven in the morning to ten at night.”

  By now, the DA wholeheartedly believed that Kimberly Saenz was a serial killer. The important thing to him was getting this person out of society so no one else died.

  In Texas, the prosecutor is responsible for proving every one of the “elements of a crime” in order to convict the person charged. One of the hardest elements to prove in the Saenz case was that the victims had actually been murdered. In most homicides, that’s the easy part—a homicide victim’s cause of death is usually pretty obvious, like a gunshot wound. However, the death certificates listed Ms. Clara Strange’s, Ms. Thelma Metcalf’s, and Ms. Opal Few’s causes of death as natural. Two of the women had been dead almost a month before the witnesses saw Saenz inject the two other patients with bleach, and before anyone would even consider something like this was possible. Second, Herrington had to prove that these crimes took place on a certain date and time, and third, that Saenz had intentionally or knowingly caused the deaths, and finally, that these crimes happened in Angelina County, Texas, where he had jurisdiction.

  Complicating matters further, Saenz wasn’t merely charged with murder—she was charged with capital murder. In other words, the prosecution had to prove all the elements of murder plus the fact that Saenz had killed more than one person in the same way. Usually only one of the elements would be in dispute, but in the Saenz case, they had to fight for each one of them.

  Still, while the prosecution team’s preparations went like a greased pig sliding down a chute, the defense team at times seemed to be stuck in the slop.

  Cheryl Pettry was a mitigation specialist brought in by Steve Taylor. The American Bar Association stipulates that a mitigation specialist is a mandatory part of the defense team. The Association goes on to say that the mitigation specialist ensures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict.

  Every trial has a second phase called the punishment
phase if the defendant is found guilty in the first. The defense attorney may believe that he or she will get the client off, but has to prepare for that guilty verdict just as he or she does for the first phase. In capital cases, that’s where the mitigation specialist comes in.

  At the time of the Saenz trial, Cheryl Pettry had worked close to eighty capital cases—more than all the attorneys on the prosecution team and defense team put together—but she said the Saenz trial was one of the most unpleasant cases she’d ever worked on. While Pettry had good things to say about Kent and Bennie Fowler, and she was especially complimentary about Saenz’s son, Jacob Hopper, she said that Kimberly Saenz, Ryan Deaton, and Vann Kelley, Deaton’s investigator, made her job extremely difficult. For example, neither Saenz nor Deaton agreed to meet with Pettry or the psychologist about the case. Deaton insisted that Saenz was going to be found innocent, and Saenz believed him.

  Pettry even had trouble just getting Saenz to confirm basic facts. For example, Saenz told the mitigation specialist that she’d graduated from Central School in Pollok, but when Pettry sent Central a subpoena for the school records, she only got the records up to the eleventh grade. It wasn’t until much later that Pettry found out that the school hadn’t sent the twelfth grade records because there weren’t any—Saenz didn’t graduate from high school. She quit after the eleventh grade.

  “She’s awful; she doesn’t know how to tell the truth,” Pettry said. “I found out that she didn’t even tell me the truth about most of her jobs. For example, she never told me she worked for the State School. I found that out on my own.”