Killer Nurse

by John Foxjohn

  Mr. Garlin Kelley’s widow followed, and then Herrington ended the day with the video deposition from Ms. Lurlene Hamilton. Early in the investigation, Herrington had anticipated that his witnesses might not make it to trial, and he’d deposed Ms. Hall and Ms. Hamilton just for that purpose.

  Because he did, he was able to let the jury see and hear Ms. Hamilton’s testimony.

  Even so, in the long run, it wouldn’t be Ms. Hamilton’s deposition that played a major role in the outcome of the trial—it would be Ms. Hall’s deposition that turned out to provide one of the most critical pieces of evidence in the entire trial.

  * * *

  Day two started off with a second video deposition from Ms. Hamilton, and then Herrington brought in DaVita employees who’d worked at the Lufkin facility in April 2008—most of whom no longer worked for DaVita.

  The first was Angie Rodriguez. She was the PCT teamed with Saenz on the morning of April 28, 2008. In fact, Ms. Rhone and Ms. Risinger were her patients. She left her patients in the care of Saenz, and when she retuned from break, she found Ms. Rhone in distress. She testified, “Kim wasn’t happy—didn’t like her job and complained often. I honestly thought she was going to leave.”

  Rodriguez was the first but not the last person to describe how Saenz waited to be the last person in the med room before drawing up her meds. She also stated that Saenz did not like patient care. She only wanted to be the med nurse.

  Deaton’s cross of Rodriguez left people in the courtroom shaking their heads in disbelief. In order to attempt to impeach her testimony, he picked up his laptop off his table, carried it to the witness stand, and spent quite a bit of time looking for videotape of Rodriguez’s interview with the police. Once he found it, he showed it to her.

  He asked her if she remembered saying something specific to the police four years before, and like most of the witnesses, she didn’t have a clue what her exact words were. He then had to find it on the computer and show it to her. This went on for most of her testimony—him standing by the witness box with his laptop searching for video to show her.

  This was not a one-time occurrence but happened with many of the DaVita witnesses. Steve Taylor said later that he’d never seen a witness impeached by having to watch a DVD on a laptop.

  Herrington and the prosecution team had transcribed every one of those interviews—all Deaton had to do was ask, “Can you provide me with a copy of the transcripts so I don’t waste my time and money doing it myself?” However, instead of doing so, Deaton had times written down based on the times on the computer.

  Deaton’s fumbling for video made him look like an unorganized goof not only to the spectators, but to the ones who counted the most in that courtroom—the jury.

  The next witness was Arlene Gamble, one of the monitors brought in by Amy Clinton to help find the problems at DaVita in April. Not only was she an RN with the title of Clinical Service Specialist, but she had been one of the DaVita instructors from 2003 to 2008.

  As Chris Tortorice took Gamble through her paces, she seemed like an excellent witness—knowledgeable, confident. One of her biggest statements was that the water was all on a loop. What one patient got, they all got. If something harmful were in the water, all of the patients would be affected, not just one or two. This was something that many people would say over the course of the trial. Although Deaton tried his best to dispute, gloss over, or hide this fact, the logic of this statement was too simple to miss.

  Unfortunately for the prosecution, Gamble ended up being counterproductive under the cross-examination. Deaton not only rattled her, but made her look unprofessional. She became visibly angry and Judge Bryan had to urge her to answer Deaton’s questions. She did, but snapped the answers.

  As Tortorice watched his witness come apart on the stand—while Saenz and her supporters were all smiles, nods, and gleeful whisperings—he knew he had to do something. When Deaton finished with her, an idea came to Tortorice on the spur of the moment. As Gamble had testified, they’d entered one of the bleach buckets as evidence.

  Tortorice also had a bottle of water on his table. He took the bleach bucket and set it on the floor, and squatted down next to it with the bottle of water. He pretended to pour bleach into the bucket and then use a syringe to draw it up. He showed the jury that to use this method—the one that Saenz claimed—he needed to squirt the bleach right back into the pan he’d just drawn it out of.

  It was a physical demonstration of exactly what the witnesses had claimed Saenz did, and he had Gamble there to tell the jury how ridiculous it was. It made a lasting impression.

  * * *

  The talk in the hallways and courtroom was as much about Saenz and her actions in the courtroom as it was with what was happening in the trial. As she had in pretrial hearings, voir dire, and the first day of the trial, Saenz seemed to be enjoying herself immensely. People commented how on a number of occasions, Saenz seemed to act as if she were at a social event. She laughed, smiled, and carried on like anything but someone on trial for her life.

  Her immediate family sat in the first row of pew seats directly behind her, and she was constantly turning to them, gesturing, mouthing words, and giving hand signs. At times she appeared almost giddy.

  At one point during Cartwright’s testimony, a debate had ensued between the defense and prosecution at the bench. Representing the state in the debate were Thompson, Tortorice, and Herrington. They were opposed by Deaton. Taylor had remained seated, leaned back, and relaxed at the defense table.

  During the debate, Saenz turned to her family with that huge smile she often displayed, and held up three fingers to indicate the state and one for her attorney who was battling them all by himself.

  Why this was so humorous was anyone’s guess. Particularly since her attorney lost the argument.

  But this was par for the course.

  The general consensus was that either Saenz was supremely confident she was going to get off, or she didn’t care. However, it wasn’t just Saenz who exuded confidence to the point of smugness. Deaton; Lesa and Vann Kelley, Deaton’s investigators; and most of Saenz’s family all exuded the same attitude. The only exceptions were Saenz’s father, Kent Fowler, and her court-appointed defense attorney, Steve Taylor.

  Because the courtroom was on the second floor of the courthouse and there was only one way to access it—the main stairwell in front of the building—everyone, including jurors, got an opportunity to view the spectacle Kim Saenz put on. In addition to Saenz’s supreme confidence, the other incongruous thing about her was that she didn’t look like a serial killer. Not a single person in that courtroom could say what a serial killer was supposed to look like, but whatever it was, it wasn’t Saenz.

  Herrington told the E! Program after the trial, “One of the things about Kimberly Saenz that is scary, she isn’t someone if you knew her or looked at her, you could tell that she would do something like this.”

  While the people in the courthouse—including the jury—couldn’t imagine what a serial killer might look like, they were getting a good demonstration of how one might act. Saenz’s lack of seriousness made an impression on them.

  Day three began with the survivors. The prosecution had charged Saenz with five counts of aggravated assault, against Ms. Risinger, Ms. Rhone, Ms. Bradley, Ms. Oates, and Ms. Castaneda. They didn’t get as much media attention as the patients whom Saenz was accused of having murdered, but although Ms. Risinger had died in a car accident and Ms. Rhone of natural causes before the trial began, the other three were very important to the trial, and they were on hand to tell their stories.

  The prosecution led off with Ms. Bradley, a white female from Lufkin who appeared to be in her sixties. She was of average height and weight with light brown hair. She also walked into the courtroom and took a seat without assistance. For her age and health conditions, she was spry. No one looking at her in person would think
she was a dialysis patient and had been one for several years—let alone a survivor of a bleach attack.

  Ms. Bradley told the jury that on April 23, 2008, she’d driven herself to her dialysis treatments at DaVita in Lufkin, as she always did. At the time she was feeling fine, and had no problems as the treatments began and progressed. But she woke up in Memorial Hospital in Lufkin two and a half days later—a time that she had lost forever. She had no idea what happened or how she got to the hospital.

  She stated that after she got out of the hospital, she would not go back to DaVita—she started treatments at Henderson Dialysis Clinic. When she talked about DaVita on the stand, she had nothing good to say about them. She said that DaVita didn’t know how to set up the machines, and DaVita used more clamps on the lines than Henderson did.

  Similarly, she said that Henderson handled the heparin, a blood-thinning drug, differently. She said that Henderson gave it at the beginning of the treatment, whereas DaVita had given it at intervals throughout the treatment.

  She stated that she felt so much better after a treatment at Henderson than she did at DaVita that it was unreal.

  As Ms. Bradley answered Herrington’s questions, the spot on the back of Deaton’s neck glowed red. When Herrington passed the witness to Deaton, it became obvious why. Deaton hadn’t spoken to her before she took the stand. She had refused to talk to him or his investigators before the trial. She told him flat out, she didn’t talk to them because she didn’t want to. She wanted to forget all of it.

  Her statement didn’t seem to make Deaton any happier. Herrington ended up objecting to Deaton’s badgering her.

  After Ms. Bradley, Herrington called Ms. Graciela Castaneda to the stand. The differences between Ms. Castaneda and Ms. Bradley were immediately clear. Ms. Castaneda was in a wheelchair and her husband had to push her into the courtroom, then she had to be helped from the chair to the witness stand. Unlike Ms. Bradley, the Hispanic woman appeared frail. She had black hair and a dark complexion. She also didn’t speak English, and the court needed a translator.

  Via the translator, Ms. Castaneda told the jury that she’d been a dialysis patient for ten years in April 2008, and on the day of the alleged bleach attack, she’d felt fine—no different than the other days of her treatment.

  When Herrington asked her if she’d had heart or breathing problems prior to April 16, 2008, the day EMTs rushed her to the hospital from DaVita, she said no. Since that date, however, she has had both.

  Ms. Castaneda testified that she remembered talking to a lady who was doing something to her dialysis lines, and then she didn’t remember anything else. A couple of months later, when her daughter was looking at a picture of a woman on the front page of a newspaper, Ms. Castaneda pointed to the photo and told her daughter that it was the same woman who’d been messing with her dialysis lines when she passed out. The picture on the newspaper’s front page was of Kimberly Clark Saenz.

  On cross-examination, Deaton didn’t get much out of Ms. Castaneda, but he did ask her if she ever chewed gum when she took her treatments. Ms. Castaneda said no, but Deaton introduced a document into evidence that would become important down the line. What he introduced was Ms. Castaneda’s medical records. On the bottom of the page, someone—neither side ever figured out who—had written that when treating Ms. Castaneda on April 16, 2008, they had to pry a piece of chewing gum out of her throat.

  The third survivor called that day was Ms. Debra Oates. Unlike Ms. Bradley, Ms. Oates was a large woman—short and very squat with light brown hair, and perhaps the youngest of all the alleged victims. However, like Ms. Bradley, Ms. Oates walked herself into and out of the courtroom and the witness box with no problems or need for assistance. Also like Ms. Bradley, she’d driven herself to and from treatments at DaVita, and she was still driving herself.

  If anyone ever considered this to be an “angel of mercy”–type action, whereby Saenz was putting severely ill patients “out of their misery,” they’d only need to look at Ms. Bradley and Ms. Oates to knock down that theory.

  When Ms. Oates took the stand, she did something no other witness at the trial, past or future, prosecution or defense, did—she looked at Saenz and said, “Hi, Kim.”

  Under examination by Herrington, Ms. Oates testified that she was extremely familiar with the dialysis process, so much so that she knew the tastes of all the meds given to her while undergoing treatment. She explained that the meds were given through the IV port and patients could taste them. After a while, they learned to differentiate the meds by their taste.

  She testified that as she underwent her treatments, she felt some strange sensations followed by chest pains. She said she couldn’t breathe, and it felt like every bone in her body was being crushed and her site wouldn’t stop bleeding.

  Ms. Oates went on to say that she had a funny taste in her mouth, one that she never tasted with any of the drugs she was given, and she asked, “What did you give me?”

  Deaton, who’d actually been the one asking the questions when she said this, asked her, “Who did you say this to?”

  Ms. Oates replied, “I said it to Kim. She was the one giving me my meds.”

  Most attorneys say that they shouldn’t ask questions they don’t know the answer to, or there are some questions best left unasked. This might have been an example of both those cases.

  When Ms. Oates had greeted Saenz from the stand, the former nurse didn’t say anything back, but she did flash a big smile for Ms. Oates. However, that smile vanished when the witness made this statement—one that another employee would later back up. With her face scrunched up and brow wrinkled, Saenz leaned over and whispered to Deaton. He then asked Ms. Oates if she was talking about the medications given at 8:30 that morning.

  These were the kinds of things that went on with Deaton and Saenz during the entire trial as Taylor, the experienced attorney and death penalty specialist, sat far to the left of them, and led everyone, including the jury, to wonder just who was assisting Deaton.

  As the day continued, Sharon Smith, an RN with DaVita in 2008 and a charge nurse, took the stand. She was one of the most important witnesses for the prosecution—so important she’d ultimately have to testify several times.

  Sharon Smith reiterated what other DaVita employees had said, especially that syringes weren’t used to measure bleach. But she was important for other reasons, too. Ms. Debra Oates had testified that after Saenz gave her the medication, it had tasted funny and she’d asked Saenz what she’d given her. Smith had come up just as Ms. Oates had asked that question—right before she became extremely ill. Smith heard and testified to that.

  However, another huge part of Smith’s testimony was crucial to the prosecution and deadly for the defense. She had been the charge nurse when Ms. Few coded and died. After Ms. Few was transported away from DaVita, Dr. Nazeer had asked Smith what meds Ms. Few was given. When Smith looked in the computer, she didn’t see the meds documented, so she asked Saenz if she’d given Ms. Few her meds. When Saenz said yes, Smith told her to document it. Saenz then went on the computer and put in a time she’d given the meds.

  The 3ml syringe Saenz had used to give Ms. Few’s meds that day, clearly marked with her name and information, had been dropped into a sharps container. This was the syringe that Christy Pate found—the one that tested positive for bleach and started the murder investigation.

  When Smith finished testifying, that spot on the back left of Ryan Deaton’s head that turned red when he was angry, upset, or things weren’t going his way was glowing like Rudolph’s nose.

  Smith had done well with her testimony while Herrington questioned her—very well, in fact. But like Arlene Gamble, Sharon Smith had a temper on the stand when Deaton questioned her. It is entirely possible that Deaton was counting on this when he opened his cross-examination by asking her, “Why did DaVita fire you?”

  The question brought
an immediate objection from Herrington, which was sustained by the judge. The question was improper. There was no evidence that Smith had been fired by DaVita, and never would be. She’d gotten a good recommendation from them when she left, and her present employers had nothing but good things to say about her.

  However, the damage was done. Smith was livid and showed it. After that, Deaton made his jaunt to the witness stand with the laptop, leaned on the rail close to her, and Smith asked the judge to get him away from her. She didn’t want him close to her. As he asked her questions, the judge had to order her to answer the questions several times.

  She was the first witness that had a little talk with Herrington or the judge after she testified about her conduct on the stand, but she wouldn’t be the last.

  PART IV

  THE STORM BLOWS

  They call this war a cloud over the land. But they made the weather and then they stand in the rain and say “Shit, it’s raining!”

  —CHARLES FRAZIER, COLD MOUNTAIN

  CHAPTER 17

  THE GATHERING CLOUDS

  There’s a saying in East Texas: “You can’t ride a dead horse.” No one seemed to have told Ryan Deaton, however, because he kept putting the saddle on and hoping his horse would move. From the time he’d taken over the Saenz defense, he’d laid claim to the scapegoat theory. He pronounced it in the papers leading up to the trial and he’d boldly said in his opening that his client was innocent, and she was being used as DaVita’s scapegoat.

  Deaton’s manner might give one the impression that he never had a guilty client.

  In his theory, the real guilty party was DaVita, who would then also be responsible for one of the greatest and most complex cover-ups in history. But that didn’t daunt Deaton.