Killer Nurse

by John Foxjohn

  Kristine Bailey, the first alternate, who didn’t participate in the deliberation process, said after the trial, “If it was a big conspiracy why here—why Lufkin? One thing Ryan said in his opening statement was DaVita was a big huge cooperation and had dialysis centers all over the world all using the same policy. Why was Lufkin the only one having issues? That didn’t make any sense.”

  She wasn’t the only one who weighed in on the conspiracy theory. Deaton’s rabbit trails didn’t lead the jury away from the nest, but right to it. David Bradford said that whenever “Deaton made a big deal over how shoddy things were done and how could [Saenz] have done all of this with all these people not knowing, it was obvious. There was enough stupidity going on for her to get away easily with that kind of stuff.”

  One of the problems that Bradford and the jury saw was each patient care person at DaVita, whether it was a nurse or PCT, cared for four patients at a time. There is a lot to do for the patients, and the health care professional needed to monitor the patients constantly. In April 2008, the state required end-stage renal disease facilities to have a patient-nurse/technician ratio of 4 to 1. Obviously DaVita met those guidelines. However, at DaVita, the nurses and PCTs worked with a “teammate.” When one went on break or lunch, the teammate took care of that one’s patients. During those times, each one looked after eight patients.

  It wasn’t hard for the jury to see the pattern. Most of the ten incidents Saenz was accused of committing had happened during those break or lunch times.

  Deaton inadvertently kept reminding the jury of this. He asked every DaVita employee, whether they still worked there or not, if they’d ever seen Kim do anything. Of course their answer was they hadn’t. If they had, they would have said something. However, these questions always brought a redirect from Herrington. First he would ask them if they were paying attention to any other employee, and all of them responded, no, they were concentrating on their own patients.

  Herrington’s second question also helped the jury understand how this could happen under the employees’ noses. “Was it unusual to see a DaVita nurse go around to the patient stations and help the patients?”

  The obvious answer was of course not. That is what nurses do.

  The jurors later talked about how Deaton had tried to claim that witnesses whose testimony didn’t agree with another witness’s must have been conspiring, but the jurors saw that differently. If there had been a conspiracy, with the employees using a script, then surely the witnesses’ stories would have agreed. The same went for the employees whom Deaton had ridiculed for having so-called convenient memory losses; again, the jury saw those lapses as more signs that there wasn’t a conspiracy. It had been four years, after all, and they thought it was normal for the employees to have had some memory discrepancies. Again, if there was the great conspiracy that Deaton tried to sell, the employees would have gone by the script.

  In attempting to insinuate a conspiracy, Deaton had only managed to convince the jury that there wasn’t one.

  David Bradford said, “If Deaton had kept it on one level, he would have had better chance than beating them over the heads like dumbasses. When every guy that comes on the stand, he goes, ‘Do you know Joe Blow, he’s on Fortune 500.’ No, I haven’t had lunch with him.”

  Bradford was referring to an exchange that occurred when the first witness from the CDC testified. In Deaton’s cross, he brought up the fact that a past CDC director was now on the DaVita board of directors. The witness had heard of the man, but didn’t know him.

  Deaton would ride that same dead horse with every CDC employee who followed—the insinuation in his question that their testimony was somehow linked to an ex-CDC director they didn’t even know.

  In his attempt to convince the jury about the big, money-grubbing Fortune 500 Company, Deaton forgot one aspect of that, but the jury didn’t. Laura Bush, no relationship to the former president, said, “When you are talking about real time folks and locals, they’re just trying to do their jobs.” The jury recognized those employees he ridiculed, many of whom no longer worked for DaVita by the time the trial came around, as honest, hardworking East Texans just trying to do their jobs and take care of their patients.

  Deaton’s aggressive style with witnesses also backfired in a concrete way with the jury. The jurors said that they were given everything they asked for, with one exception: when they asked for the transcript of Ms. Hall’s testimony in the trial, the judge sent a note back that said he would give them a part of the transcript but not the whole transcript because there was a dispute with the attorneys. Ms. Linda Hall had been the first witness called by Herrington. She was also the one whom Deaton had attacked on the stand and drew reactions not only from the spectators but the jurors, too. Walker said that Ms. Hall’s testimony in court was pretty compelling. “That was the only time I got choked up during the entire trial.”

  But then one of the jurors remembered that while they were missing the court transcript of Ms. Hall’s testimony, they actually already had the transcript of her deposition.

  Since Ms. Hall had testified in person, there had been no need to watch her video deposition as they had Ms. Hamilton’s, who had unfortunately not lived long enough to make it to trial. But several years before the trial took place, Herrington had taken video depositions of both women, and Herrington had placed the transcript of Ms. Hall’s deposition into evidence and the jury had that.

  So, instead of using her court testimony, they used her testimony in her deposition. Juror Caren Brooks read Ms. Hall’s deposition aloud as foreman Larry Walker read the questions asked of her by Herrington and Scott Tatum, Saenz’s previous attorney.

  Kimberly Flores said, “The defense attorney tried to portray Ms. Hamilton and Ms. Hall, the two witnesses, as being weak and sick. That wasn’t an issue to me. They saw what they saw. They’d been in dialysis for years and they saw something that wasn’t right. To me, the eyewitnesses deserve a lot of credit.”

  * * *

  At the end of Thursday, the day the jury began deliberating, they held another silent vote, but this time Walker asked if they had a question mark last time, go ahead and put guilty or not guilty—whichever way they were leaning just so they could get a feel. He thought that would help them out but actually those question marks were split. They were now eight guilty and four not guilty.

  In an interview after the trial, juror Daniel Phipps related how difficult the trial and the deliberation were for him. He said, “I wanted [Saenz] to be innocent so bad. You just don’t know it. That Thursday night I might have slept maybe an hour to an hour and a half. I cried, I tossed, I turned. As a matter of fact, after it was all over, my wife told me, she said, ‘I’m so glad that this is over because I thought our marriage was going to break up because you were about to burst.’” Phipps said he pushed everyone away. “I couldn’t even deal with my family.”

  Like Daniel Phipps, all the other jurors’ emotions were tearing them apart. But all of them had another issue to face besides the enormous weight on their shoulders. They were scared to death of jury misconduct. Every one of them was always very careful about it. All of them told about hearing rumors in the courthouse that Deaton’s investigators were following the jurors around.

  Walker said, “I think they were trying for jury misconduct, because when you go to the appeal you don’t want to go before this three-judge panel. You want a new trial, and the best way to get that is with jury misconduct.”

  * * *

  On Friday morning, the second day of deliberations, Walker took another vote. This time, they had ten jurors who believed Saenz was guilty of the murders, and two who didn’t.

  At the beginning of voir dire, the objective on both sides was to find intelligent jurors. They succeeded. That morning the jury began what they called probabilities study. Every single juror agreed that a DaVita employee had injected the patients with bleach. The bleach was
in those bloodlines and syringes. The water didn’t do it and there was never a big conspiracy to blame everything on Kimberly Saenz. As Herrington had said in his closing, “Deaton wants you to think that DaVita waited around for twenty-eight days on the off-chance that someone would see and report something so they could blame that person.” But none of the jurors believed that.

  The question with all of the jurors wasn’t if an employee injected bleach into the patients, but which employee did it. The jurors had the calendar that the state presented that had all the days that Saenz worked, which was only twelve days out of the twenty-eight that month. There were ten events on six different days.

  The odds that Saenz would have been at any of those events were 40 percent.

  Juror Karla Myers said, “Yeah, but how many other DaVita employees were also there on all of those days?”

  They went through every time sheet on every DaVita employee.

  Kimberly Saenz was the only employee who had worked on every day there was an event.

  Juror Kimberly Flores, a math teacher, was the perfect one to help the jury conduct a probability study. The list of probabilities included: the probability of someone dying on the dialysis machine; the probability that Saenz was the only one working on every single day; and the probability of Saenz being the only name on any of the syringes shown to contain bleach. Add up the odds of all of those and multiply it out, and the odds are approximately 1 in 640,000,000.

  And that didn’t even take into account the two eyewitnesses who saw Saenz inject patients with bleach.

  Another crucial element for the jury was the computer search, specifically the search, “Can bleach be detected in bloodlines?” The search with that phrase had been run in the early morning, the time Saenz normally got up to go to work, on April 2, 2008, the day after the first two patients died.

  This raised the question in the jurors’ minds: how could anyone using that computer have known about bleach in the bloodlines on April 2, 2008? The police would not be involved or collect the bloodlines for twenty-six days after that search was conducted. Not to mention, Saenz had herself told police, unprompted, that she hadn’t conducted any computer searches on the topic. Deaton had promised the jury that Kevin Saenz would testify to explain away those searches on the computer, but though the jury had waited for him to do so, he never did.

  The computer searches and the probability study were what won over the remaining jurors who’d still been leaning toward not guilty.

  It became emotional in the jury room once they’d decided Saenz was guilty of the murders. Juror Martha Moffett said, “I really wanted her to be not guilty, but she’s not,” and then she started crying.

  Caren Brooks echoed what Moffett said. “I thought the evidence was just so compelling against Kim. She’s a mom with kids and I kind of wanted to feel sorry for her. I wanted her not to be guilty, but after we got started, the evidence just showed otherwise.”

  Kimberly Flores was another one who voiced that she wanted Saenz to be innocent. “We all wanted her to be innocent. My job every day is to pull for the underdog—I’m a teacher. I mean I wanted her to be innocent, she just wasn’t.”

  After the jurors found Saenz guilty of the murders, they still had those five aggravated assaults to consider, although some jurors now thought of them as nit-picking, when compared to murder. They didn’t see the difference in life without parole and twenty years, or life without parole and a hundred and twenty years.

  Daniel Phipps wasn’t one of the jurors who felt the assaults didn’t matter. He brought up the fact that there was family out there of victims not on the capital murder count, and they, too, wanted closure. Some patients in the audience were themselves victims of these assaults.

  After the trial, Phipps said, “I was real strong on this, and I am glad I was.”

  One of the other jurors who took the assault charges seriously was David Bradford.

  Bradford said, “One of the funny dynamics that happened was the two jurors who were the most outspoken for the defense and not guilty, when we flipped over to the nit-picking, the two that were the strongest for innocent, once they saw the truth for what it was, they turned like they’d had a lover cheat on them.”

  The jurors said it was 11–1, with the 1 being Bradford, for a long time on the five aggravated assaults. The eleven wanted guilty on all five. However, Bradford wanted the same evidence to apply to the assaults that applied to the murders. He said, “I was determined that the criteria they used for the murders should also be used for the assaults.”

  He made a statement, “I can hold out till hell freezes over.”

  In the end, the jury found Saenz guilty of the aggravated assaults of Ms. Marva Rhone, Ms. Marie Bradley, and Ms. Debra Oates. The two assaults they found Saenz not guilty of were Ms. Castaneda and Ms. Risinger. They gave Deaton credit for creating doubt with Ms. Castaneda. During the trial, he’d raised a question about whether she had actually choked on a piece of gum she was chewing, causing the onset of her problems.

  Besides that, neither Ms. Castaneda nor Ms. Risinger had had bloodlines submitted for testing. Debra Oates’s bloodlines weren’t submitted either, but she was there to testify for herself.

  At the end, they went around the table to get each juror’s vote. Larry Walker told them that they all needed to say it loud so that everyone could hear one another. “It was guilty all the way to the last person, who was Daniel Phipps,” recalled Walker. “All of a sudden he kind of choked up like we all did from time to time, and this was on Friday right before four forty.”

  Daniel Phipps said, “She’s guilty, I know she’s guilty, but can we have the weekend to pray about it?”

  Larry Walker didn’t know what to say, but then someone spoke up and reminded them that they still had to do the punishment deal Monday. Daniel Phipps said, “Then she’s guilty.” They’d been at it so long, most of the jurors had completely forgotten that there was a punishment phase to follow.

  Larry Walker said, “I’m not normally an emotional person, but after the guilty verdict, I’d almost made it home—right as I got in the driveway, it all came to a head. I couldn’t get out of my truck. I had to sit in the truck five minutes. I had an emotional breakdown.”

  CHAPTER 23

  STRETCH MARKS ON THE SOUL

  On Monday morning, April 2, 2012, four years and one day after Ms. Clara Strange and Ms. Thelma Metcalf died at DaVita, and exactly four years to the day of Kimberly Clark Saenz’s fateful computer search, the jury filed back into the courtroom for the punishment phase.

  The punishment phase in a trial is sometimes called the second trial, but the objective is different for both sides. The first phase is about guilt or innocence only. The second phase is about punishment, but now the fact that the person was convicted can also be used.

  Otherwise, the second phase is exactly like the first. The prosecution puts on evidence and witnesses, usually in an attempt to get the maximum punishment, and the defense does the same, but to attempt to get the least punishment. Then the jury deliberates again to answer the question of what sort of sentence the guilty party will receive.

  As the crowd filed in Monday morning for the punishment phase of the Kimberly Clark Saenz trial, her defense attorney Ryan Deaton, all the swagger and cockiness knocked out of him, sat slumped in his chair much as he had after hearing the guilty verdict. The big smile he’d worn throughout most of the trial had disappeared from his face. He sat without uttering a word for the entire process.

  The reason for Deaton’s silence was because of something that took place behind the scenes. Co-defense lawyer Steve Taylor had approached DA Herrington and asked him to waive the death penalty and give Saenz life.

  Herrington told Taylor that he would only agree to waive the death penalty if Saenz changed her plea to guilty and waived her appeal options. If not, he was inclined to let the jury decide he
r punishment.

  Taylor told him that Saenz wouldn’t go for that, but then asked Herrington not to hammer on the death penalty in his closing. Herrington’s response was that if Deaton was involved in the punishment phase, he had no choice but to seek the death penalty with everything he had.

  But that wasn’t all that was at stake. Saenz had two children, and neither Taylor nor Herrington wanted to cause them any more pain than they were already experiencing. Taylor later said, “Herrington knew what we were going to try to do in the punishment phase. I didn’t want to destroy the young man [Jacob Hopper], a good-looking, hardworking, nice young man. Didn’t want to put him through that.”

  The problem was that hearsay isn’t allowed in any phase of a trial, and people aren’t allowed to tell what someone else told them. This was the reason that Jim Risinger wasn’t allowed to tell what his wife had told him. Because of that, character witnesses would not be able to talk about or tell what the children had told them. The children themselves would have to be put on the stand to do that.

  “If you want to ask witnesses what the kids said or things about them, then I’m okay with that,” Herrington told Taylor but, still seething from Deaton’s closing the previous Thursday, also said, “If Deaton is involved, I can’t do that. Deaton isn’t trustworthy.”

  What went on behind the scenes between Herrington and Taylor was unknown to most, but Monday morning, Taylor was the only attorney who spoke for the defense, and because of the agreement, Saenz’s two children did not have to testify.

  Kim Saenz had been escorted back to the courthouse in chains Monday morning for the sentencing hearing. During the trial, she’d worn makeup and dressed fairly nicely, but that wouldn’t be the case for the hearing. Her face, devoid of makeup, showed that she appeared to have spent the entire weekend crying. Her eyes were puffy, and her face was red. After the jury had found Saenz guilty of four of the six charges, sheriff’s deputies took her to the Angelina County Jail, where she was placed on a ten-minute interval suicide watch. Normally, the county had prisoners they suspected of suicidal tendencies on a thirty-minute watch.