by John Foxjohn
Saenz sat between a totally dejected Deaton, and Taylor, who for the first time was actually sitting close, not pushed away from the table. Her attitude was also in stark contrast to what it had been most of the time during the trial. Without a doubt, she was no longer enjoying the process going on around her. The only person on the defense side who showed any signs of life was Taylor, and he had a job to do—attempt to save her life. From the beginning, he’d been the only one who’d taken a realistic approach to the trial, the only one who’d attempted to prepare for this eventuality.
Prosecutor Clyde Herrington began the punishment phase by calling two Lufkin police officers, both of whom had arrested Saenz before for domestic problems with her husband. Then he called Sergeant Steve Abbott to testify. Abbott testified about a few of the jobs Saenz had, including the firing at Woodland Heights, but Herrington didn’t ask him to go into detail. He then passed the punishment phase to Taylor.
It soon became clear that the defense had real problems with this phase of the trial. They were severely lacking in character witnesses for Saenz—not because no one would have spoken for her, but because all of her supporters had been with her in court and so weren’t allowed to testify on her behalf now.
This was the reason attorneys plan for this stage even if they don’t think they may need it. Without prior planning, they only had from Friday evening to Monday morning to get this together. And Saenz’s life was at stake.
Cheryl Pettry, the mitigation specialist, said that she only spoke to Deaton twice: once when he wanted her to sign an affidavit to get a continuance, and after the trial when he called her at her hotel room because someone told him she’d said something bad about him. She fully admitted she had said a lot of bad things about him.
Vann Kelley, the investigator, hadn’t helped matters either, because he, too, had apparently assumed that this phase of the trial would never take place. And Saenz had insisted that all of her family members sit in the courtroom. Now that they were needed, they couldn’t testify on her behalf.
Pettry had been able to find some people to come in and testify, including a couple of people from Fleetwood Transportation, the place that had employed Kimberly Saenz before she married Kevin and went to nursing school. Pettry also found a couple from the Central School in Pollok, a man who coached her daughter’s softball team, and the preacher from Saenz’s church. Even though he could have objected to some of the testimony, Herrington let it go. In fact, throughout the entire process, there was not one single objection from either side.
The last witness Taylor called was Frank Aubuchon, an expert with the Texas Department of Corrections. Aubuchon told the jury that life in prison is extremely structured. While violent incidents happened in the male prisons, there were hardly ever any incidents in the women’s prisons.
He told the jury that at the present time, there were twenty-seven women serving sentences of life without parole, and if sentenced to life, Saenz would share a cell with one other woman, who also would have to have a sentence of sixty years or more.
The last fact he told the jury gave them a little pause. The only jobs Saenz qualified for were in the kitchen or the laundry. These two jobs would give her access to bleach.
When Taylor was through, Herrington gave his closing remarks, but they were nowhere close to what he’d done at the end of the trial phase because his emotions were different. When he delivered his devastating closing in the trial phase, he had been furious with Deaton and the misrepresentations. In the punishment phase, Deaton wasn’t involved and therefore couldn’t fan those flames that still smoldered in Herrington.
When he sat and gave the floor to Taylor, he did so without asking the jury for the death penalty. It was still on the table, but he didn’t ask them to choose it outright. He’d told Taylor he wouldn’t push the issue if Deaton didn’t speak, and he was a man of his word.
But it wasn’t Herrington’s closing that stood out in the punishment phase—it was Steve Taylor’s. He’d already prepped the jurors in voir dire for this eventuality. They already knew about the society that Saenz would enter, and it wouldn’t be the same one as the jurors or their loved ones. She would never be a danger to their society again. She would only leave prison in a pine box. They knew this, but he also reminded them.
The audience sat spellbound as Taylor told them about “stretch marks on the soul.”
“Each of us goes through life experiences that make us who we are,” he said. “Sometimes there is a fine line of something we’ll always remember and something we’ll never forget. Sometimes that line is kind of wavy and things cross over.
“Capital cases aren’t just tough on the families of the victims or the accused. It’s very tough on the twelve people sitting in the box. You are also innocent participants in the trial. You were asked to dedicate your time to serve your community to be impartial jurors.
“In making decisions we go back to our roots, our parents, grandparents, and the life changes that make us who we are. Life-changing experiences leave stretch marks on the soul.”
* * *
If Deaton had looked like he’d taken a giant punch in the stomach that morning, the twelve jurors, men and women alike, had filed in looking like they’d gone three rounds with Mike Tyson. The tremendous burden they’d been placed under showed in their faces and posture. The members of the jury were all mentally and physically exhausted, and they still had to deal with the punishment phase, and then decide whether they would vote to have Saenz executed—not an easy topic to rest on someone’s mind and shoulders for an entire weekend.
During the trial they had been alert and followed every word. They had taken notes and been engaged in every facet, even the boring stuff. Now, their eyes almost looked glassy. The enormity of what they had to decide seemed to turn their personalities inside out.
In his closing, Taylor had talked about the burden placed on the jurors, and it was indeed daunting. In the end, every one of them had not only stretch marks on their souls, but scars. Since the death penalty had been a major topic in voir dire that began at the end of January, they’d had it on their minds for over two months. Without a doubt, Steve Taylor left a lasting impression on them. They slept with his words, “If she’s found guilty, she will only come out of prison in a pine box.” In his closing, they’d heard it again.
After the trial was over, several jurors quoted Taylor saying, “You won’t find her in Walmart or Whataburger.” The seeds he’d planted about the society that Saenz would be in, and the fact it wasn’t the one they’d gone in expecting, also left a lasting impression.
There were some other things that these jurors came out of voir dire with. Most simply didn’t believe Herrington was truly pushing for the death penalty.
These feelings were magnified later in the punishment phase. It seemed like Herrington only put on a token case for the death penalty. He never challenged Taylor, and even the jurors saw places where Herrington could have easily done so.
Then there was the fact that Herrington did not even ask for the death penalty.
After the trial was over and punishment meted out, the question was, just who had saved Saenz’s life? It’s not a simple matter to sit in judgment and say someone should die. Death penalty cases are complex and require the jury to make decisions about life and death that are far beyond the usual juror decision of guilt or innocence.
It’s also extremely confusing. The people who construct the laws and procedures use language typically foreign to the people whose understanding of it is the most crucial—the jurors.
To wit: “In death penalty cases, mitigating factors do not have to be proven beyond a reasonable doubt, and jurors do not have to agree on the existence of a particular mitigating factor or on how much weight it should be given. However, jurors must find that at least one aggravating factor has been proven by the prosecution beyond a reasonable doubt in order to find
the defendant is eligible for the death penalty.”
This is not the language that most people use every day, and it even confuses people who do use legal language. Even Taylor and Herrington got befuddled while trying to explain it to the jurors in voir dire.
The jurors left the courtroom to deliberate, in effect, whether Saenz lived or died. (Although technically speaking, the jury doesn’t make that decision—the judge does. The judge makes his decision based on the jury’s answer to one, and maybe two, special circumstance questions. However, every juror in that room knew what the effects of their answers would be.)
Of course that first question was the vital one because it was really the only one the jury had to answer. They would only go to the second one based on answers to the first. The first question is often called the “future danger” question. Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
Was Saenz a future danger? The jurors heard from Herrington in voir dire that the best way to predict future actions was look at what that person did in the past, the way an employer might look at an applicant’s grades in school. If that person had worked hard to achieve good grades, he or she would probably work hard at their job.
Both sides presented past actions by Saenz. However, the jury had one past action that weighed heavily on them: they’d just convicted her of capital murder and aggravated assault. If she was capable of doing it in the past, she could do it in the future. The question of whether she was a future danger to society was still an extremely difficult one to answer, and the jury’s decision had to be unanimous.
If no, she wasn’t a future danger, then they would submit that to the judge, and he would issue life without the possibility of parole.
If the jury answered yes, they did find her a future danger, they would go to question two, the “mitigation” question.
Described thus, it seems like a simple process. But that is the language of one society, the one who didn’t construct the law. Here is how that other society says it:
(2) it may not answer any issue submitted under Subsection (b) of this article “yes” unless it agrees unanimously and it may not answer any issue “no” unless 10 or more jurors agree; and
(3) members of the jury need not agree on what particular evidence supports a negative answer to any issue submitted under Subsection (b) of this article.
Huh? What happens if ten of the jurors vote she would be a future danger? This is an important question because that is exactly what happened inside that jury room. The jurors were confused by this going in and they were confused by this coming out. A month after the trial was over, they were still confused over it.
Larry Walker, the foreman, said, “We didn’t ever get to question two. We had to have ten or more jurors to go to number two, and we had exactly ten—actually I was one of those who wanted to take it to two. Juror Regina McAvoy was so shaken up, she got confused, she said, ‘What do I put down if I don’t want to give her the death penalty?’”
Ms. McAvoy later confirmed that she was one of the two who’d voted no. She honestly didn’t think Saenz would be a future danger, and she didn’t want to give her the death penalty.
In fact, they were all confused. They couldn’t vote yes, because they didn’t have a unanimous vote. Could they say no, she wasn’t a future danger? They didn’t have ten or more say no. They only had two.
Under normal circumstances, the ten might have been able to convince the two that she would be a future danger. After all, they did have some ammunition to use in order to convince them, and if they hadn’t been so confused about the ten or more, they might have tried. In this case they didn’t. Once they had the 10–2 vote, Larry Walker asked them, “Do we need to discuss this?”
They did have a unanimous vote on that—no.
After that, they had no problem agreeing on giving Saenz the maximum sentence for the three aggravated assaults.
Forty-five minutes after beginning their deliberations, the jury returned with their verdict.
Kimberly Saenz had told people that she would rather get death if she was found guilty. Somewhere along the process she must have changed her mind. She mouthed “thank you” to the jury when the judge issued the sentence of life in prison without the possibility of parole, plus sixty years.
* * *
The day after Judge Bryan announced Saenz’s punishment, The Lufkin News led off with a quote from the daughter of one of the victims in big, bold headlines: I HOPE YOU BURN IN HELL.
After the jury had returned with Saenz’s punishment, the judge had thanked and dismissed them, but the court process wasn’t finished. What remained were the gut-wrenching victim impact statements.
Many of Cora Bryant’s, Opal Few’s, Thelma Metcalf’s, Clara Strange’s, and in a limited way, Garlin Kelley Jr.’s family members had attended most of the trial. With them was Ms. Marie Bradley, who had survived the bleach injection, and Mr. James Rhone, husband of Marva Rhone, another survivor who’d later passed away from natural causes.
The families had simmered with rage when Saenz turned around and smirked and smiled at them during trial. Their family members were dead, taken away from them, and here their accused killer was walking around laughing, giggling, and carrying on as if it didn’t matter. As a matter of fact, many of the people watching her came away with the feeling that she was taunting them with her guilt, and her confidence that she was going to get away with it.
The feelings they’d suppressed erupted in the impact statements. With the exception of Garlin Kelley’s relatives, who did not participate in the statements, the families of the murder victims all now addressed Saenz directly.
In fact, it was Wanda Hollingsworth, daughter of Thelma Metcalf, who’d uttered those words plastered across the headlines: “I hope you burn in hell.” She’d gone on to say to Saenz, “You are nothing more than a psychopathic serial killer.”
Marisa Fernandez, granddaughter of Clara Strange, took the podium, but was often too distraught to speak. At times she broke down and had to take a few moments before she could continue. She told about how her grandmother had raised her from the age of seven, after her mother died.
Her most heartbreaking words came when she related how she still kept her grandmother’s number in her cell phone wishing she could call her. “Now I have my own children,” she said, “and I have no one to call. No one to ask questions only a mother could answer.”
Then, perhaps in a jab at Saenz for the torment she’d put the family through during the trial, Fernandez said, “When I go home I’ll get to spend time with my children. You will not.”
Linda Few James followed. She was the daughter of ninety-one-year-old Opal Few, who even in her advanced age, was perhaps the victim in the best health. All signs had pointed to her having many years left—in fact, Linda Few James mentioned that her mother’s oldest sister was about to turn one hundred years old. Linda Few James told Saenz how she’d robbed her mother of the benefit of dying at home surrounded by her family—which had been Ms. Few’s wish.
The last person to take the stand to address Saenz was Angela Scott, daughter of Ms. Cora Bryant. She addressed some of her comments to Kimberly Saenz, but some she addressed instead to Bennie Fowler, Kimberly Saenz’s mother, who sat in the first row behind the defense table. In one of the oddest quirks of the trial, Angela Scott, the daughter of one of the victims, and Bennie Fowler, mother of the convicted killer, worked together at Walmart. As Scott told KTRE-TV after the sentencing, “The sentencing was fair. [Saenz] got what was due to her. She’s of age and she’s held accountable for what she does.”
Kimberly Clark Saenz never expressed any emotion during the reading of the impact statements. She sat at the table, looking down and writing on a legal pad. But even her lack of reaction to the statements said a lot about her.
A
s the day ended, many questions remained unanswered, most notably the big one, the same one that had baffled people from day one: the one that even kept law enforcement detectives, federal agents, CSU people, and yes, even Herrington from believing Saenz initially guilty—why did she do it?
Although Herrington wasn’t required to prove motive to convict Kimberly Saenz, he understood that people wanted to know. He’d taken extra steps to try to find out what might have spurred this young East Texas woman to kill the patients in her charge.
He contacted Professor Beatrice Yonkers, an RN and Director of Nursing at California State University, considered the foremost authority in the country on motives for criminal acts involving medical professionals.
In an article by USA Today writer Rick Hampson, Yonkers explained, “Fearing lawsuits, many hospitals will confirm only the dates of employment for a former worker and make no positive or negative recommendation to another hospital thinking about hiring the ex-employee. The problem has been exacerbated by a nursing shortage. Some hospitals just want a warm body with a nursing license and a CPR card who can be on the floor the next day.”
This was what had happened with Saenz. DaVita and the other places she’d worked had checked references, or as much as was provided, and they had no other means to get information. When DaVita hired Saenz, there was a serious allegation against her from Woodland Heights Hospital, but at the time, they didn’t have access to that information.
In truth, DaVita had needed nurses badly, but whether they would have hired her even if they’d known the problems she’d had at other jobs, no one will ever know.
