by John Foxjohn
She said that the prosecution team’s answer was no, but it was a question many of the jurors wanted answered.
Kristene Bailey said simply, “The whole defense in my opinion was a joke.” She was the first alternate and didn’t get a vote on guilt or innocence, life or death, but she wasn’t the only one who’d felt that way. “I’ll be completely honest,” Bailey said of Deaton, “as soon as he opened his mouth and said DaVita was a puppet master—that got objected to and it should have—that put me off right from the beginning.”
In other words, from the moment Deaton opened his mouth at the trial, he began to lose jurors.
Most of the jurors thought Deaton treated them, as David Bradford said, “like dumbasses.”
In their opinion, Deaton had been rude and disrespectful to the witnesses, to the court, and yes, to the jury, too.
But Deaton wasn’t the only one they watched, and the jurors had also been appalled at Kimberly Clark Saenz’s behavior. The smiling and laughing wasn’t something that just went on before or after the trial. It took place while the trial was in progress in front of the jury.
As a matter of fact, Saenz often leaned close to Deaton and whispered, or passed little smiles back and forth—not what people expected in a trial where someone was accused of murdering five people and faced the death penalty.
As the trial progressed, this became one of the most talked-about topics by spectators in the hallways, how much Saenz appeared to enjoy the process all the way from the pretrial hearings to the trial, and the jurors were amazed at how she was walking around intermingling with everyone—just having a good old time.
Another element of the Deaton and Saenz dynamic that surprised the jurors was how poorly Saenz and Deaton treated Steve Taylor, the experienced attorney and death penalty specialist. Taylor sat way to the left and away from Saenz and Deaton, while Saenz appeared to be the one assisting Deaton, handing him things he needed, whispering, or passing him notes. It got to the point that people wondered: was this nurse who hadn’t graduated from high school and possessed two years of junior college credits actually telling her defense attorney what questions to ask?
As one of the jurors also said, “Her carrying on with Ryan [Deaton], rubbing against him, bothered us. This went on in the courtroom and it didn’t seem appropriate.”
However, the jury’s big question was: how could the defense attorney let his client act this way in a trial for her life?
Juror David Bradford said, “One of the things that impressed everyone, too, when they said Opal Few coded and she was on break out there, the employee ran out to her and says you need to get back in and she said, ‘I’m finishing my break—I’m finishing my cigarette.’”
Bradford said, “When you heard that, you just went, I mean you know her mind-set because I don’t care how frustrated you were, if you had any concerns you wouldn’t have done that.”
This was huge to the jury. Kimberly Flores said, “I wrote this in my notes. I know it doesn’t make her guilty but what kind of health provider wants to finish her cigarette before helping a patient who’s coding?”
Along these lines, she said, “That’s like a kid dying in the hallway of my school and I won’t go out and help him until I finish assigning homework.”
The jurors also weighed in with their opinions on some of the witnesses. The ones who impressed them the most were Amy Clinton for the prosecution, and Candace Lackey for the defense. In regards to Lackey, several of the jurors said, “She was called by the defense but she wanted to tell the truth.” They’d felt sorry for her. She had been shaking during her testimony, her foot was tapping. Several put it in their notes—“she is telling the truth.”
Another defense witness who impressed the jury was nephrologist Dr. Michael Germain from Massachusetts. Bradford said, “He by far was the best, most polished witness to me. What I really liked about him was he seemed honest. At the end when Clyde [Herrington] said, ‘Can you say that all these things could not have been caused by the bleach injections,’ and he said no.”
The witnesses the jurors had liked the most, no matter which side called them, were the ones they perceived as honest. The jurors didn’t perceive Dr. Gruszecki as dishonest, but thought she was mistaken quite a bit. Larry Walker said, “Her opinion came right before the trial, and it seemed like she was not very familiar with all the witness statements or the FDA report, and she didn’t review the victims’ records thoroughly. Tortorice seemed to know more about 3-chlorotyrosine and the sciences than she did.”
Even after the trial was over, the jury had trouble getting away from Deaton. One of the first was Walker, the foreman of the jury. Walker said, “Deaton called me and we got in an argument after he accused me of strong-arming the other jurors.” Walker said he told him, “I didn’t railroad anyone. You need to talk to them.” He gave Deaton the names of the jurors who’d originally voted not guilty or who’d been on the fence.
Larry said as soon as he’d given Deaton the names, he felt awful, as if he’d betrayed them.
Deaton or his investigator did contact those jurors, including Gail Brasuell. She said that when Deaton’s private investigator came to her house on Friday afternoon, she invited him in and they talked for about an hour, and he said something to the effect that he’d heard that the foreman had strong-armed her. She told him that wasn’t true, and echoed what everyone else said: Larry was a great foreman.
Deaton or his investigator tried to talk to every one of the jurors who’d been undecided, even one who had told Deaton on the phone that she didn’t want to talk. Despite that, Deaton’s investigator showed up at her front door. She said he tried to get her to look at a bunch of papers. He asked her if she’d have known about what the papers said, would it have made any difference. She told him that she was through with that trial and didn’t want to look at anything.
The jurors whom the defense contacted said they were never asked why they thought Saenz was guilty, what the defense could have done better, or why the other jurors had changed their minds about Saenz’s guilt. Several of the jurors believed that Deaton’s purpose was just to get the others to say Walker made them vote the way they did so he could get a reversal of the decision.
Gail Brasuell said no emphatically to the strong-arming. “[Walker] was excellent. He said my job is to make sure everybody speaks even those who are very quiet. Those who speak too much need to not speak as much.”
Bradford said, “One of the things that Larry did good, when someone didn’t know something, the approach that he took was, he’d say, ‘Okay, explain to me the part that you are unsettled with. Give me the parts that really bother you,’ and those were the parts that they delved into and tried to dig up the evidence to see where it would go and we didn’t stop until everybody had every point that bothered them settled.”
The jurors also credited Walker’s organizational skills. They had gone around the table, talking about what they wanted to go over, and Larry made an agenda. Before they left that first day, he set the agenda for what they needed to discuss the next day.
One of the jurors commented, “Instead of Deaton trying to accuse Larry of strong-arming us, he should be asking him about how he was so organized.”
CHAPTER 25
THE REAL CONSPIRACY
Kimberly Clark Saenz had a documented history of depression and had already undergone treatment at Brentwood Hospital in Shreveport, Louisiana. At the time of her initial interview with the police, she told them she was under a doctor’s care and taking medication for depression. After the jury convicted her, the sheriff’s department placed her on a suicide watch in the county jail. Perhaps because of all of this, from the Angelina County Jail, Kimberly Clark Saenz was transported to Jester IV. This is a Texas Department of Criminal Justice facility located at Richmond in Fort Bend County. The TDC unit, which is located southwest of Houston and around three hours from Lufkin
, is actually listed as a male facility, but it is also a maximum-security psychiatric facility, which was the reason Saenz was transported there for evaluation.
After a stay at Jester IV, she was transported to the Murray unit at Gatesville, a maximum-security prison for female offenders four hours directly west of Lufkin. Gatesville, in Coryell County, is forty-five minutes west of Waco in Central Texas.
Before she was shipped off to prison, she appeared one more time in Judge Bryan’s court. Dressed now in the trademark orange jumpsuit and sandals with white socks, she appeared larger than she had during her trial. Chained hand and foot, she shuffled as she made her way in a line with other prisoners who were also appearing before the judge.
With her was Deaton, who told The Lufkin News that he intended to be involved in Saenz’s appeal process. Deaton began the process in front of Judge Bryan by asking the court to waive the cost and give them a copy of the court transcript because his client was indigent. The transcript cost in the neighborhood of $30,000.
Deaton went on to tell the judge that the family planned to hire an attorney, meaning himself, to handle the appeal. The judge told Deaton it was all or nothing, meaning if they hired an attorney, they paid for the court transcript. If an attorney was assigned to handle the appeal, then the county would provide the appointed attorney the transcript.
Once Deaton heard this, he told the judge that the county would need to provide her with an attorney for the appeal and the transcript. Several said that Deaton wanted the judge to appoint him to handle her appeal, but that wasn’t going to happen.
Judge Bryan instead appointed Robert A. Morrow III, an attorney from The Woodlands, a suburb of Houston and a thirty-four-year veteran of criminal defense, as Saenz’s appeals attorney.
However, Lufkin is small and so is the courthouse, and rumors run as fast as East Texas rivers in flood. One that continuously made the circuit was that Bennie Fowler, Saenz’s mother, cashed in her retirement at Walmart, and Kent Fowler, her father, cashed in his 401K from Peterbilt, planning to use the funds to rehire Deaton as soon as Morrow got the transcript from the court for the appeal.
One thing is for certain: Deaton wasn’t about to do the appeal for free, and the court wasn’t about to appoint him and pay him. People close to Saenz’s parents said they were dead broke. The cost of the trial had already drained them of every cent they had. For sure, attorneys in a capital murder case don’t come cheap.
Many of the Saenz supporters have the wrong idea about the appeals process. Several have said that the appeals court will look and see that there wasn’t enough evidence to take Saenz to trial and release her. Unfortunately, that isn’t what they do. The first appeal is before a panel of three judges. They look to see simply that the defendant received a fair trial. Her supporters were adamant that Saenz was going to get a new trial on appeal, and then be freed. They were as adamant about that as they were during the trial. Steve Taylor attempted to explain to Saenz and her family the long odds of winning that trial. Before the trial, he even brought in an expert to talk to them about realities, but they didn’t buy it then, and they still weren’t.
The success rate of direct appeals, the first appeal process, is slightly less than 3 percent. But this statistic doesn’t deal with cases involving multiple victims. Statistically, Saenz has a better chance of winning the lottery than winning an appeal.
The next step in the appeal process is the Court of Criminal Appeals. However, that court is a discretionary one. They choose which cases they are going to hear. There is less than 3 percent of the cases this court even hears, let alone overturns.
Taylor, one of the first attorneys in Texas to be certified in criminal appellate law, said, “Do you think they are going to give anybody any slack who was found guilty of killing five people, and committing aggravated assault on three others?”
Family and friends took to Facebook to right the wrong they thought was done to Saenz. They created a Facebook page called “Release Kim.”
The Facebook page included a large picture titled “Shredded Justice,” showing a man from the neck down, standing in the middle of a pile of shredded paper. Big red letters proclaimed “DaVita.”
This image pointed to the heart of the reason Deaton and the family believed Kimberly Saenz was convicted: the court wouldn’t allow the defense to present certain things as evidence.
During the trial, Deaton had attempted to bring in a couple of janitors who’d helped clean up the DaVita clinic after it closed down after April 28, 2008. Both janitors were voir dired outside the jury’s presence. They testified that after the clinic closed, they’d carried out a lot of closed garbage bags of trash. The bags were very light, as if full of shredded paper. One of the janitors said that she’d seen paper shredders inside with paper dust on them.
However, the judge ruled the jury couldn’t hear the testimony. Even if those bags had been full of shredded paper, it didn’t mean anything. Saenz was on trial for killing and injuring patients with bleach. No one was accused of using paper.
Deaton had wanted this testimony in to help him prove his conspiracy theory, but even if the judge had let it in, it likely would have only hurt Deaton’s case further. DaVita was a computer facility. They had no paper records on hand. When they needed a copy of a patient’s file, they had to go to the computer and print that file out.
When DaVita reported what the witnesses had said on April 28, they were descended on by several organizations, including the Lufkin Police Department. Sergeant Steve Abbott alone examined over 16,000 documents, all of which DaVita had to print off for him.
What the defense attorney and the family members didn’t seem to consider was that, by federal law, medical facilities are required to shred any documents they print. Evidence of paper shredding wouldn’t have pointed to conspiracy; it would only have shown that DaVita was following federal law.
The document that Deaton and his investigator had attempted to get some of the jurors to look at after the trial was something else the judge had not allowed in. It was a Texas Department of Health and Human Services report that the agency did in May 2008, after DaVita had shut down.
In that report, the agency was very critical of DaVita and its procedures. Among other things, the report stated that DaVita wasn’t following their own procedures as far as reporting of incidents, paperwork, and other things like that. The agency concluded that it was possible that if DaVita had done all their paperwork correctly, a pattern might have been noticed prior to April.
Herrington explained why the court did not allow the document in. He said, “If a restaurant is using bad mayonnaise and it is causing illness and deaths to the customers, and investigators go in and find an open jar of tainted mayonnaise, that relates to the crime and is admissible.
“However, if they find a sealed jar of mayonnaise on the shelf that has been recalled, that can’t be used because it hadn’t even been opened. It wasn’t the cause of the illnesses and deaths.”
The report was critical to DaVita practices but nothing in it indicated that DaVita was responsible for the things that were injuring and killing patients. Therefore it was not admissible in a court of law.
These were the sorts of things the defense attorney and family had had all their hopes pinned on.
In addition to the Facebook page, Saenz supporters also created a website also under the “Release Kim” URL. Both the Facebook page and the website had a faith-based angle, though at the bottom of the website home page was a “Donate” link, allowing donors to send money to Saenz’s supporters via any major credit card, and a “Get Involved” link offering suggestions of ways that her supporters could help, including donating monthly to help Kim’s defense fund.
Kimberly Saenz eventually took to the Internet herself, though seemingly for different reasons. The Texas prison system allows its inmates to troll the internet for pen pals and such, and inmat
es can post personal ads, along with pictures of themselves and contact information. Saenz posted an ad calling herself “a cool mix of girlie and tough,” and a “sexy, fun, devoted, social, open minded female seeking a pen pal for friendship.” She listed her interests as including “reading, playing with animals, interior decorating, sports, traveling, and listening to music (mostly rap and country),” “keeping up with the latest gadgets, latest news, and scientific studies,” plus “taking guitar lessons or learning French,” and boasted “my intuition is spot on, trivia night is a jam, my shoe collection is fabulous.” “Life is too short!” she also proclaims at one point, ignoring her role in having helped shorten any lives.
The ad read like an exercise in wish fulfillment—the photo she posted of herself wasn’t a recent one, and most people who’d viewed her in the courtroom or the booking pictures wouldn’t have recognized her from it. Saenz also claimed a release date of 3-31-2022, but the Department of Corrections doesn’t agree. They simply list it as life without parole.
Ryan Deaton told The Lufkin News that he hoped Saenz got a new trial from the appeal. But even if she did, there was no guarantee that a new trial would find her innocent; and if she was convicted again, she’d again be in danger of getting the death penalty, which she’d missed by only two votes the first time around. The old saying to be careful of what you wish for was definitely in effect.
* * *
After the trial was over, Clyde Herrington let the East Texas public in on a little piece of information that was even scarier than what had come out at the trial. Early on in the investigation, he contacted an epidemiologist at the CDC by the name of Dr. Melissa Schaeffer. Her study of the adverse occurrences at DaVita and the days Saenz worked and the way they matched up helped convince Herrington that he was on the right track with the investigation, and went a long way in convincing him that Saenz was guilty.
