In 1994, Northeastern found that out of six hundred and three Massachusetts residents, seventy-four percent favored the death penalty for a first-degree murder conviction. Yet, when these same people were asked to choose between the death penalty and life without parole, only thirty-eight percent opted for death, and fifty-four percent chose life without parole.
Nevertheless, on May 13, 1999, U.S. Attorney General Janet Reno weighed in with the government’s decision: Bill Welch and his team had the green light. Ironically, if Gilbert were convicted and sentenced to death, she would die in the same manner as she had killed: by lethal injection.
It was an unprecedented move on the government’s part—because the last time a criminal had been executed in Massachusetts was more than fifty years ago. On May 9, 1947, thirty-four-year-old Edward Gertson and his thirty-two-year-old partner, Phillip Billeno, convicted in the murder of Robert Williams, were electrocuted.
Nearly two weeks after the government announced its plan to go forward with the death penalty, Gilbert was brought before Judge Michael Ponsor. If she ever wanted to save the taxpayers of the state of Massachusetts any money, as she had once told her then-husband, Glenn Gilbert, back in 1996, well, here was her opportunity.
Although she had gained some weight, Gilbert hadn’t really changed much since she’d been incarcerated. She was still rather attractive, considering the life she had led for the past two years.
Looking down the entire time, Gilbert stood before the soft-spoken judge and calmly pled not guilty.
CHAPTER 82
For the next year, defense attorneys David Hoose, Harry Miles and Paul Weinberg filed one motion after another, while Bill Welch and Ariane Vuono countered with their own. Each motion filed by Gilbert’s defense was flavored with the same mantra Hoose and Miles had been trumpeting ever since they had taken on the Gilbert case: The government’s shoddy scientific evidence and heap of circumstantial evidence pointed to their client only because it had no one else to pin the deaths on. The government was on a “witchhunt,” they insisted—and Kristen Gilbert had been its target since day one!
By March 2000, after several hearings on routine matters, the central theme of Gilbert’s defense began to emerge as Hoose and Miles, opposing just about every motion filed by the government, continued to maintain that the patients in question had died of natural causes. There were no murders.
With a deadline of June 15 for all motions looming, Judge Ponsor was now faced with the decision of which pieces of evidence to allow into the trial.
Right away, Hoose went after what he thought was the government’s most damning evidence: the toxicology tests done on Skwira, Jagodowski, Cutting and Hudon. Hoose called it “junk science,” and said that the specific type of testing done in this case actually disguised the natural cause of the death.
Dr. Fredric Rieders, the laboratory director of National Medical Services in Pennsylvania, where the testing in question had been done, took the stand during a hearing in late March to discuss his methods for testing tissue samples. Rieders had testified in several prominent murder cases throughout the years. In the OJ Simpson case, for example, he brought out the fact for Simpson’s defense that blood on the socks found at Simpson’s house and the back gate of Nicole Brown’s condominium both contained EDTA, a blood preservative used in police labs.
Rieders would be saying that it was massive amounts of epinephrine that killed Gilbert’s patients, not natural causes, as Hoose and Miles continued to claim.
He also said he was going to testify that Skwira, Jagodowski, Cutting and Hudon all had high levels of epinephrine in their tissue—much higher levels than are naturally occurring. This was consistent, Rieders claimed, with epinephrine poisoning—especially in the case of Cutting and Skwira, patients who hadn’t received any injections of epinephrine during their codes.
For most of the day, Welch and Hoose grilled Rieders about his testing methods.
Then Hoose brought in his own experts to quash Rieders’s theory that his method of testing was first-rate science. If the jury was allowed to hear Rieders’s testimony, Hoose argued, it would mislead them.
At the end of the day, Judge Ponsor said he would take both arguments under consideration and make a decision as soon as he could.
Throughout the next few weeks and months, Ponsor began to crack his whip and show just how tight a leash he was going to keep on the Gilbert trial. The government’s charges of obstruction of justice and retaliating against a witness, Ponsor ruled on Tuesday, April 11, 2000, would not be part of the murder trial. Gilbert, he said, would have to be tried separately on those charges.
By June, Ponsor had made a decision regarding Dr. Rieders’s testimony.
“A jury should be permitted to consider—and accept or reject—this evidence,” Ponsor ruled.
The government had won a key ruling.
Then Ponsor shot down a motion by Hoose and Miles to challenge the death penalty. Ponsor said most of the defense’s death penalty arguments had already been turned down by the US Supreme Court years ago in other cases, and as to those that hadn’t, well, Hoose’s arguments, according to the judge, were “unpersuasive.”
As one decision after the next came in from Judge Ponsor, Hoose and Miles were flippant about how one-sided the judge appeared to be in his rulings.
But two key motions eventually fell in Gilbert’s favor, the most important being whether the jury would end up hearing from Glenn Gilbert that his then-wife had tried to murder him with an injection of potassium back in November 1995.
Ponsor barred any testimony about the incident saying it would “create unfair prejudice.”
The second ruling regarded the statistical evidence SA Plante had obtained back in 1996 from Stephen Gehlbach, dean of the School of Public Health at the University of Massachusetts. Gehlbach had run the numbers for Plante and, among many things, concluded that there was less than a one in one million chance it could have been a coincidence that Gilbert had been on duty for so many codes and medical emergencies. Ponsor made a point that there was no room in his courtroom for such evidence. It would only taint the jury’s belief that the defendant was innocent until proven guilty. Along those same lines, Ponsor also ruled that Gilbert’s colleagues were barred from testifying “that the death rate at the hospital increased during Gilbert’s shifts.”
Things were, apparently, evening out.
The government sent out about seventeen hundred jury summonses during the first week of July, setting the stage for what was amounting to one of the largest jury pools the state of Massachusetts had even amassed.
In his jury proposal, Ponsor wrote that he would not sequester the jury, and that he was also considering keeping a scrapbook of newspaper articles about the case to give to each juror after the trial was over in hope of stifling any temptation on their part during the trial to read the coverage.
Each side had until August 11 to submit replies to Ponsor’s proposal. After that, the process of picking a jury would begin.
CHAPTER 83
The trial was expected to begin on Monday, November 20, 2000. It took weeks, but by the beginning of November a jury was chosen: nine women and three men. Their ages ranged from sixty-nine-year-old Olga Flynn, the oldest, to Scott Stetz, a twenty-year-old UPS worker from way upstate, in Lenox, the youngest. Among them was a nurse, a homemaker, a high school special needs teacher, a female lumber store worker, a dental assistant, a machine designer, along with a gamut of other professions. If Hoose and Miles wanted a jury of their client’s peers, they had certainly scored one for the home team—because not only did the females outnumber the males by three-to-one, but there were mothers on the jury, something any defense attorney would want.
As the trial approached, the enormity of the task ahead began to take a toll on Judge Ponsor, who had never presided over a death penalty case in his decades of sitting on the bench.
Ponsor received a call one night a few days before opening arguments from a
friend and colleague who had known firsthand how demanding a trial of such magnitude could be on a judge. He told Ponsor to keep an eye on the “level of stress [he] would be facing” in the coming months. The judge’s reasoning? He, too, had sat on a death penalty case years ago and, shortly after it was all over, suffered a massive heart attack.
It was good advice for the tall and slender judge who considered himself to be in good physical shape and health. So Ponsor pledged to get twenty minutes of exercise each day and suggested that the defense, prosecution and jury members do the same.
Still, there loomed the anxiety of what was ahead.
Days before trial, Ponsor began having nightmares. In each dream, he was either the person facing execution or the executioner himself, preparing to dole out the punishment. Ponsor would see himself “walking down a hall, breathless with terror as to [the] imminence of death” with prison guards slowly shuffling alongside him. There, at the end of the hall, he would see a “vaguely recognizable man” staring back at him, “partly concealing [an] ax in the folds of his long black robe.”
Without the luxury of a hair salon, an L.L Bean catalogue to order clothes from, or even the freedom to eat what she wanted when she wanted, Kristen Gilbert had gone through a physical transformation like no one could have imagined since her arraignment on murder charges in 1998. A glutton for the spotlight at one time, here she was now on the first day of her murder trial—Monday, November 20, 2000—seated next to her lawyers, more than one hundred people packed into the courtroom behind her, severely overweight, with her normally shoulder-length, bleached-blond hair grown out into its natural auburn color, falling halfway down her back. Dressed in a purple blouse, dress pants and black pumps, Gilbert tried desperately to carry herself like the young woman she was, having just turned thirty-three on November 13. But as she sat in a courtroom with the possibly of a death sentence hanging over her head, Gilbert’s face told a different story. Bloated and unrecognizable, she looked nothing like the trim and fit strawberry blonde of just three short years ago.
“Can you believe that’s her?” echoed throughout the courtroom as spectators and reporters saw Gilbert for the first time in years.
“This is the case of the United States vs. Kristen Gilbert. . . .” the clerk read aloud, looking down at her ticket. It was 9:53 A.M. With all that had happened during the past four and a half years, it all came down to two simple words and a seven-digit number: Criminal Action 98-30044.
Ever since Welch had gotten involved in the Gilbert case, he’d promised the victims’ families he would give their loved ones a voice if the case ever made it to trial. And as Welch and Vuono learned the particulars of how each veteran had died, the case came down to two very important—yet simple—medical issues: sudden cardiac death versus death.
As he worked on his opening statement over a four-week period, Welch knew that beyond making the point that the victims were common people the same as the jurors, the aim of the speech had to drive home one significant point: No matter how sick a person is, no matter what ailment they suffer from, rarely will they just die suddenly one day—and, if they do, there has to be a specific reason as to why.
That reason, the government maintained, was epinephrine poisoning at the hands of the defendant. Why? To impress her then-boyfriend, James Perrault, and to get him to come up to the ward for the medical emergencies so she could flirt with him. It sounded ridiculous. But according to the government, over the next several months, one witness after the next would walk through the stained-glass oak courtroom doors on the fifth floor of the Springfield Federal Building, past Gilbert’s parents, past all the reporters, past Steven Plante and Kevin Murphy, past the victims’ family members, raise his or her right hand, and tell one story after the next that lent itself to that theory.
Detective Kevin Murphy and Special Agent Steve Plante would play the part of courtroom watcher now, sitting behind Vuono and Welch, scanning the jury for reactions, taking note of anything they could. Downstairs, in the U.S. Attorney’s Office on the third floor, they would offer moral support to the witnesses who were preparing to testify.
Although many of the government’s witnesses were headstrong, wanting nothing more than to get up on the stand and explain what they knew, others were terrified. To every single witness, Murphy and Plante said something they had told themselves over and over throughout the years they had worked the case: “The truth has a way of standing there all by itself. Just explain to the jury what you know.”
Each witness held one piece of information that, coupled together with the next witness, would chronologically tell the story from day one.
To Murphy and Plante, it was simple.
“This is the nugget that you hold,” they would tell witnesses, “and we need you to deliver it.”
Years before the Gilbert trial, Bill Welch and fellow U.S. Attorney Kevin O’Regan had prosecuted a bank fraud case that consisted of thousands of pages of documents they had to get the jury to understand. For the first time in Springfield, Welch and O’Regan had used a Power Point presentation during what became known as the “paperless trial.” Incorporating several video monitors and laptop computers spread about the courtroom, each side could orally present its case along with pictures and videos. All the documents had been scanned into a computer beforehand, and several video presentations were created. The system turned out to be such a time-saving device that the same technology was used in just about every major trial at the Federal Building.
With the Gilbert case centered on the condition of the heart before and after death, this breakthrough technology, Welch knew, would prove itself priceless and, in a sense, allow the jury to feel as if they were sitting in their living room watching a documentary film about the case.
“I don’t like it,” Ariane Vuono, a self-proclaimed technophobe, said when she first heard about it. “I am totally against it!”
But within weeks of incorporating the Power Point technology into the Gilbert case, Vuono was not only won over, but she was overwhelmed at how innovative the system actually was. As they used multi-colored, three-dimensional images similar to a heart echogram and ultrasound, when the jury was finished listening to—and watching—the trial, each juror, Welch and Vuono knew, would walk out of the courtroom with a lesson in medical anatomy they had never seen before.
When Bill Welch and Ariane Vuono showed up for the first day of proceedings, they looked exhausted. Both had been up for a better part of the previous night preparing the appropriate responses to dozens of motions David Hoose had filed during the last week before trial.
It was an underhanded move on Hoose’s part. Judge Ponsor had set June 15, 2000, as a deadline for turning in all motions. The judge said that date would give both sides enough time to prepare arguments.
Raging mad, Ponsor blasted Hoose. “This is the last thing I need to deal with right now!”
But Ponsor was in a jam. If he refused to hear the motions, his decision would be undoubtedly reversed on appeal. So he gave Hoose hell, and let Welch and Vuono have all the time they needed to answer the arguments.
During his two-hour opening statement, Assistant US Attorney Bill Welch pointed at Gilbert several times, raising his voice, accusing her of causing great pain to each veteran she had killed.
“. . . [T]hese seven victims had to go through a most horrible experience. In many cases feeling the burn or the pain of the epinephrine as it flowed into their IV lines and directly into their veins. Their hearts raced wildly until almost beating and bursting out of their chests, the feeling of the impending doom as death quickly approached.”
Reporters vigorously scratched on their notebooks. People looked at one another with alarm, shock, bemusement.
Regarding Gilbert’s coworkers not realizing Gilbert had been killing for so long, Welch wanted to address the subject right away.
“[E]veryone on Ward C . . . was in a state of denial,” Welch blasted before he went through each of the victims�
� stories, while photographs hovered in the background on the video monitors. As he spoke of war heroes, alcoholics and diabetics, grandfathers, husbands and brothers, their family members in the courtroom sobbed in remembrance. One by one, Welch explained how Gilbert had taken the life of each victim for no other reason than to leave work early to meet her boyfriend, James Perrault, or just to get him upstairs so she could see him.
“[T]here was not a single code,” Welch said, “[between October 1, 1996 and February 17, 1996] on a night when James Perrault was off duty.” A few minutes later, pointing to Gilbert once again, ripping a hole in what Welch presumed would be one of Hoose’s main arguments: “It’s kind of like lightning striking not once, not twice, but several times in the same month, in the same hospital, on the same ward—all following this defendant.”
At one point, Welch compared Gilbert to a firebug—an arsonist—calling her a “codebug” who staged medical emergencies to impress Perrault.
“In the end . . . this case is about . . . a defendant who took advantage of a system that places its trust in the hands of its caregivers—a system in which patients placed their trust in the hands of its caregivers! This defendant used that trust”—he stopped for a moment, using silence to build suspense—“against the patients and the system to commit acts of cold-blooded murder and attempted murder.”
Welch scanned each member of the jury with his eyes for a moment.
“Thank you.”
Suave and professional-looking, David Hoose centered his one-hour-and-thirty-five minute speech on the defense’s “witchhunt” theory, proclaiming that Gilbert was a fit mother, a good nurse, and that she and her then-husband, Glenn, were “blessed with two beautiful boys who became the center of their lives.” But working opposite shifts, Hoose said, was “. . . enough to put a strain on any marriage.”
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