Killer Nurse

by John Foxjohn

  Deaton looked like a whipped dog. Perhaps if he had left it right then, he wouldn’t have gotten both barrels, but it just wasn’t his style to leave things alone. He said, “I haven’t been dishonest with this Court.”

  Judge Bryan glared at him. “Well, when you say things like, ‘well, the evidence is,’ and then I ask you what is the evidence on a certain issue, you say, ‘well, it’s what I believe.’ And then I ask you what is the evidence, though? ‘Well, there isn’t any.’ That’s not exactly being straight. When you misquote witnesses in questions saying, ‘well, if so-and-so said,’ and that wasn’t what was said—and some of it’s been objected to and some of it hasn’t—that’s not exactly being straight.”

  Deaton still pushed the issue. “In a normal situation, Your Honor, the only thing I would say is that people, lawyers who are investigating cases, investigators who are investigating cases, record conversations all the time—without a person’s knowledge.”

  Judge Bryan responded, “But there’s not an affirmative comment that, ‘I’m not recording it.’ And it’s a little different when you’re dealing with an attorney than when you’re dealing with a citizen. You don’t have to tell—there’s some dispute whether you do or don’t. I think there have been some ethics opinions or comment to ethics opinion that a person shouldn’t record anybody if they don’t—a lawyer shouldn’t, but there’s obviously certain protections that come with doing that, with recording them without telling them to preserve what they said. But when you have an attorney that you’re dealing with, and if there was an affirmative statement that, ‘we’re not going to record it’ or an agreement that it’s not to be recorded, then that’s a little different because of ethics and other issues.”

  It’s not often that spectators in a criminal trial get to hear the judge call the defense attorney dishonest.

  Tortorice commented after the trial that what Deaton had done was a violation of the rules of professional conduct. It’s not a violation for citizens in Texas to record others, but attorneys and their representatives are different. However, this was even worse than that. It also violated a specific agreement that the attorneys would not record the interview.

  After the trial, the prosecution team said that they respected Deaton’s stamina. His psyche took some dents from the judge’s tongue-lashing, but it didn’t take long for the armor surrounding his personality to pop right back in place, and the judge’s admonitions never seemed to bother Saenz at all.

  The defense party continued like nothing had happened even as Herrington turned up the heat. At the heart of the prosecution’s case was a long and difficult word to spell, “3-chlorotyrosine,” and Herrington called Dr. Mark Sochaski, director of analytical chemistry at the Hammer Institute for Health Research, as an expert witness to explain this word and what part it played in the case. Interestingly enough, this was the expert witness that Deaton attempted to exclude before the trial—the one that he said used bad science.

  Officially, 3-chlorotyrosine is a marker of protein damage in the body, and many experts believed that bleach in the blood would not only destroy tissue, but also protein, and because of this, the aftereffect of the protein damage was 3-chlorotyrosine. They believed that the presence of 3-chlorotyrosine was an indicator of the effects of bleach on a person’s blood. Dr. Sochaski had spent years studying the effects of chlorine on rats.

  Proteins are composed of chains of amino acids linked together like beads on a large necklace, and were at the heart of his research and the reason that he believed that the effects of chlorine on rats would be the same as on humans. Rats have the exact same amino acids as humans do.

  However, 3-chlorotyrosine, amino acids, chlorine, and rats were only part of what Dr. Sochaski traveled all the way to Lufkin, Texas, to testify to, and maybe not even the most important. The last part of his testimony, and probably the reason Deaton tried to get him excluded, would be huge in this case, and something the jury would talk about after the trial ended.

  Early on in Abbott’s investigation, after he discovered that the FDA and CDC could examine the syringes and bloodlines, he sent away fifty-one samples in what they called a blind study. Intermingled in those fifty-one random samples was the evidence. All the group receiving those samples knew about them were their identifying numbers, from 1 to 51. They had no idea which if any of the samples contained the evidence. As it happened, it was Dr. Sochaski who conducted the tests on those blind samples. The problem for the defense was that every single sample that Dr. Sochaski said contained bleach was an evidence sample, and every one that he said didn’t, wasn’t.

  The next expert that Tortorice called was David Jackson, a forensic chemist with the U.S. Food and Drug Administration. His testimony was vital to the state’s case. He was the person who’d tested all those bloodlines and syringes that Sergeant Steve Abbott had collected from DaVita. Using color charts, Jackson showed the jury exactly where he’d been able to find bleach and bleach residue in the evidence.

  The expert witnesses for the state had all been interesting and appeared to be professional and competent. However, none would capture the attention of the spectators and jury like the next two. Leading off in what could best be described as a true CSI moment was a scientist from the FDA’s Forensic Chemistry Center. Stanley Frank Platek had worked with the FDA for twenty-one years, and he worked in the trace evidence section.

  When asked what he did, he stated, “Anything left behind. My specialty is small particle analysis.”

  However, as it turned out, Mr. Platek had another specialty—puncture analysis, and this was the reason he was in Lufkin to testify. He would say, “Puncture marks in bloodline ports are very distinctive.” But that wasn’t all; he also testified that syringe needles left a very distinctive mark and he could identify the exact needle that made the mark.

  One of the lines he examined was that of Ms. Opal Few. She was the patient who’d died on April 26, 2008. A week after Ms. Few’s death, Christy Pate from the Lufkin Police Department had discovered Ms. Few’s labeled 3ml syringe in one of the confiscated sharps containers. This syringe undercut Saenz’s argument that she used a syringe to measure bleach, because it was too small by far for that purpose. It was when Christy Pate discovered that bleach-laden syringe that the police investigation went from aggravated assault to murder.

  Now, Mr. Platek testified with absolute certainty that the puncture wound in Ms. Few’s line had been made by a 3ml syringe—the one that had Ms. Few’s name on it.

  Then on day ten of the trial, the mysterious computer searches were finally addressed. Mario Mares, a forensic computer specialist for the Office of the Inspector General, was scheduled to testify. But right before Mares was to take the stand, Deaton surprised the court. Though he’d had three years to prepare his defense, Deaton made a motion to suppress evidence found on the computers because of the search warrant.

  In most trials, this is something done in pretrial hearings—not the last second before an expert witness testifies.

  After the trial was over, when asked about this motion, Taylor said, “Who knows. Maybe he just woke up and thought he had to object to it.”

  After a break for the judge to examine the search warrants, the objection was overruled, the trial resumed, and Mares took the stand.

  Mares explained the process he went through to search a computer, and informed the court how data deleted from a computer never really leaves it. It can be found using software on the unallocated portions of the hard drive.

  Another aspect of what Mares did was look through all the files and attempt to identify all users on Saenz’s parents’ computer. On that one, he found Kimberly Saenz’s 2007 H&R Block tax return with her name, date of birth, and social security number. Along with that, he also found e-mails with her name on them. Both activities led him to believe that Saenz was one of the users on that computer.

  Before Mares began his sea
rch, he received key words from the police to look for. In this case, he didn’t know that it was Kimberly Clark Saenz’s own husband, Kevin Saenz, who’d given the police those key words.

  At 4:14 in the morning of April 2, 2008, Mares found that someone did a Yahoo! search on the computer for bleach poisoning. The date was significant. It was the morning after Ms. Strange and Ms. Metcalf had coded and died. It was their deaths that prompted DaVita to investigate their own facility. However, this search also flew into the face of Saenz’s statement to the police that she thought the problem was with blood pressure, and she’d never searched the computer for the cause, a claim she later did a one-eighty on when she testified in front of the grand jury. The time also seemed significant: Kim Saenz was regularly up at this hour in order to get ready for work.

  When Mares finished his testimony, the court broke for lunch, but an air of anticipation buzzed through the courtroom. Everyone had already got a glimpse of the next witness sitting in the front row ready to testify.

  * * *

  Dr. Michael Schwartz was the medical officer for the Centers for Disease Control. The CDC is a part of the national government—a part of the United States Public Health Service Commissioned Corps (PHSCC), to be exact. Because the PHSCC is one of the seven uniformed services that includes the Army, Navy, and Air Force, the officers must hold a military rank. Although the Surgeon General holds an Army rank, the others hold Navy ranks. Schwartz, who held the rank of naval commander, was tall, handsome, and solidly built. He made an imposing sight as he came into the courtroom dressed in his naval uniform, and marched up to the witness stand. His military bearing gave him credit in this part of the country before a word was even uttered.

  However, this was a man who didn’t need any help with credits. He was a graduate of Cornell University, and from there had gone to Oxford Medical School in England, and then back to Cornell for his Ph.D. A two-year fellowship at Emory in medical toxicology followed, where he did significant work on antifreeze poisoning in dogs. He now trained toxicology students at Emory University, and volunteered on the weekends for ER shifts at the Atlanta hospitals.

  In fact, Schwartz’s list of credentials was a lot longer—so long it brought on an objection from Deaton when Tortorice was halfway through reading them. However, the judge let Tortorice keep listing them. People’s estimation of Schwartz grew with each successive accomplishment.

  Because Dr. Schwartz was a medical doctor as well as a board-certified forensic toxicologist, he was perhaps the best person in the country to examine all the evidence the state had and render an opinion.

  Unlike some of the other experts, Dr. Schwartz hadn’t merely spent just a couple of weeks with the case and evidence. He’d spent a couple of years. In fact, he spent one entire month doing nothing but reading all the literature available on bleach poisoning.

  Deaton tried to discredit him, trip him up, or make him look wrong, but it was a fool’s mission. Dr. Schwartz’s military bearing wasn’t just surface image. The man was a consummate professional.

  When Dr. Schwartz left the stand, Taylor, who had a son in the Navy, approached the man to apologize. Taylor believed Deaton had been rude and disrespectful during his testimony. Dr. Schwartz told Taylor he hadn’t taken offense, that he understood the stakes.

  But it seemed to be a big deal to Deaton’s mother. Taylor said, “She climbed all over my butt. ‘How—what are you doing—don’t apologize, you’re supposed to be a part of our team!’”

  However, to Taylor it was a matter of respect no matter what side the person was on. Just because an expert’s testimony went against his client didn’t make the person a mortal enemy. Taylor believed that respect can be given to a person’s deeds without total reliance on his words.

  Although Dr. Schwartz wasn’t Taylor’s enemy, his last words were devastating to the defense’s case. He made it clear that, in his medical opinion, the victims had all died or been injured as a result of injections of sodium hypochlorite—bleach—into the dialysis lines or bloodstream. The jury left with those last words ringing inside their heads.

  In order to convict someone of murder, the prosecution had to prove that the victim was actually murdered. In most murder cases, this was easy and seldom challenged by the defense in court. But because the alleged weapon, bleach, was so difficult to detect in the bloodstream, the Saenz prosecution was especially difficult. If the jury believed Dr. Schwartz, however, Herrington had just proven a major part of the case.

  CHAPTER 19

  TROUBLED WATERS

  At nine in the morning of March 19, 2012, the Kimberly Clark Saenz trial began its third week and most expected the state to rest. If so, the people who followed the trial would finally get to see just why the defense were so sure of themselves.

  As the trial wore on and the evidence began to pile up, Saenz’s frequent laughter and smiles, and her seeming imperviousness to the gravity of the charges against her, grated on the victims’ family members’ nerves. Even worse, they felt, was Saenz’s habit of turning slightly and looking back at the victims’ families. Several of the family members said that she turned and smiled at them or had a smirk on her face—as one family member said, it looked like “she really thought she was going to get away with it.”

  Once prosecutor Clyde Herrington rested his case, defense attorney Ryan Deaton made a motion for the judge to dismiss the case because the state hadn’t proven his client was guilty. It was a normal defense tactic, but Judge Bryan dismissed the motion. No way would Saenz get off that easy.

  As the defense began, Saenz’s supporters, mostly from her church, showed up in court en masse. From their smiles and cheerful attitudes, it was clear that the Saenz camp believed Deaton was about to destroy Herrington’s case.

  However, as Deaton had done from the moment he became Saenz’s attorney, he either overestimated himself or underestimated the prosecution team. Now the prosecutors had some surprises in store for Deaton. They’d objected numerous times during Deaton’s cross of state witnesses—mostly for misrepresenting facts—but the defense attorney hadn’t seen anything yet. Attorneys who are cross-examining witnesses as Deaton had as the prosecution put on their case can do so with leading questions, but not when conducting direct examination. Before, the state was putting on its witnesses and the defense cross-examined. However, now the defense would be putting on the witnesses and would have to ask nonleading questions.

  At one point, Herrington rose from his seat and objected to one of Deaton’s leading questions. When the judge sustained the objection, Herrington didn’t even sit down. Instead he remained standing, waiting on the next question so he could object to that, too. Which he did, and the judge had no choice but to sustain the second objection, too.

  Deaton’s first witness was Jim Risinger, husband of Carolyn Risinger, one of the alleged victims whom Ms. Hall and Ms. Hamilton had witnessed Saenz inject with bleach. Unfortunately, Ms. Risinger had been killed in an automobile accident, so she wasn’t there to speak for herself. Jim Risinger wanted to tell the jury that his wife had told him that Saenz hadn’t done anything to her. But Herrington was ready for that—even novices to the courtroom know that hearsay isn’t allowed in a trial. Why Deaton thought he could slip that by was anyone’s guess.

  Mr. Risinger’s testimony did nothing to help the defense, but as it turned out, Herrington had a few questions for him. Under Herrington’s questioning, Risinger went on to testify that he’d never seen the techs mix the bleach at the machines, that they always did that before the patients arrived, which contradicted what Saenz had said and reinforced what every other DaVita employee had testified to.

  After Risinger, Deaton called Gail Owens to the stand. Ms. Owens was an LVN for eighteen years, but had been a dialysis patient since 2002. Deaton asked Ms. Owens if she’d ever seen Saenz do anything wrong, and she responded that she hadn’t. But after several similar questions, she said something t
hat left people shaking or scratching their heads:

  The witness told Deaton that she was legally blind.

  Deaton did better with Kenny Graham, another DaVita patient, although Mr. Graham admitted that he had tunnel vision without being able to see anything in his peripherals. At least Deaton had known this. Graham also claimed that he was Carolyn Risinger’s friend, and had had his head turned in her direction the entire time she was undergoing treatment and he never saw anyone do anything to her.

  Deaton next called Giselle Frenette, one of the monitors who came to DaVita with Amy Clinton in April. She was the employee who’d assisted Clinton in opening the two sharps containers and testing the syringes when bleach was found. Frenette turned into a really strong witness—for the prosecution.

  Deaton ended with his sarcastic “You work for DaVita, don’t you?” question. This was a question he reserved just for the employees who still worked for DaVita and didn’t answer the questions the way he wanted them to, but this was his own witness. He even asked her, “You were told how to testify, weren’t you?” She responded that she was: she was told to tell the truth.

  On day thirteen of the trial, the jury spent most of the day out of the courtroom, and then the judge sent them home early. A witness by the name of Catherine Denese Pickens had come forward to claim that another DaVita employee could have killed the patients. Since Pickens wasn’t on the witness list, they voir dired her testimony on the stand without the jury present.

  Pickens, who was no stranger to the courtroom (she’d been arrested on several occasions for possession of a controlled substance), told a story that involved a love triangle between herself, her husband, and Sharon Smith, the DaVita RN whose testimony was so damaging to the defense. Pickens claimed that Smith had been having an affair with her husband, and alleged that after the affair ended, Smith had threatened the couple with a knife.