An Almost Perfect Murder (15 page)

On Monday, June 18, 2007, the trial for Chaz Higgs finally got under way in the Department Number 8 courtroom of Washoe County District Court judge Steven R. Kosach. It was about 9:30
A.M.
when all of the lawyers, defense, and prosecution, along with Chaz Higgs, met with Kosach to address the pretrial motions that had been filed. Jury selection had been scheduled for 1:30
P.M.
, and discussions were under way to allow a defense witness to testify out of order, due to the witness’s scheduling conflicts, while the state presented its case. Case Number CR06-2876 was one that was not to be missed—in part because of who Kathy Augustine had been, and because of the anticipated strong and often creative defense that had been put together over the past several months. The usual media trucks with their satellite dishes surrounded the historic courthouse, which sometimes can be found draped in large American flags, especially around Flag Day, which had been four days earlier.

Judge Kosach referred to a motion
in limine
regarding scientific evidence and expert witnesses. A “motion
in limine
” is a legal tool that asks the court to render a decision on whether certain evidence may or may not be presented to a jury during trial. As the prosecutor Tom Barb prepared to call a witness in reference to the aforementioned motion, defense attorney Alan Baum addressed the court.

“Your Honor,” Baum said, “it is our belief that it is the state’s burden to establish the necessary requirements for the admission of this particular type of evidence . . . therefore I would defer to the state to meet its burden by presenting any witnesses that it wishes to. It’s not the defendant’s burden when we’ve raised an objection to the admissibility of scientific evidence. The authority is clear that it’s the state’s burden, that is, the proponent of the evidence burden, to establish the basic foundation for admissibility.”

“We accept that, Judge,” Barb responded.

 

 

After establishing that it was the state’s burden to establish the necessary requirements for the admission of the particular type of evidence that would be presented in this case, particularly that which is centered on the scientific evidence that everyone knew was coming, Barb called Dr. William H. Anderson, chief toxicologist for the Washoe County Sheriff’s Office (WCSO) Division of Forensic Science.

Barb elicited testimony from Anderson demonstrating that he had reviewed the analytical data of the toxicological testing done at the FBI laboratory by Madeline Montgomery. Anderson had also reviewed the validation data, which had become an issue of sorts, for the methods and protocols that were used by the FBI, and confirmed that he had discussed the case with an expert witness on toxicology for the defense, H. Chip Walls. Walls, he said, needed additional information about sample availability, among other things, and they had gotten on a three-way conference call with Madeline Montgomery to address Walls’s questions. Anderson said that he had no questions for Montgomery, but was there as an interested third party.

“So, Walls, Montgomery, and you were on a three-way call, and questions were asked and answered, and then other documents were provided?” Barb asked.

“That is correct,” Anderson replied.

“Have you seen those other documents?”

“I had—one of the primary concerns was an illegible document that Mr. Walls had,” Anderson explained. “And I could read my copy. So I received a list and acknowledgment from Mr. Walls that he had received that material, but I did not receive another copy. . . . I did subsequently receive some validation data.”

“Based on your review of the documents that have been provided, all of them, do you have an opinion as to the trustworthiness of the FBI testing procedure?”

“In my opinion, the procedures were standard procedures that are used in forensic toxicology to make identifications. They ran appropriate negative and positive controls. And, in my opinion, there’s no problem with the identification of either succinylmonocholine or succinylcholine itself.”

 

 

When Barb had finished, defense attorney David Houston cross-examined the witness.

“Doctor, what’s the standard operating procedure as adopted by the FBI for the test of succinylcholine?” Houston asked.

“It’s kind of lengthy,” Anderson responded.

“Well, let me ask you this. Are you aware there isn’t one?”

“I’m sorry. What was that question?”

“Are you aware there is not a standard operating procedure as adopted by the FBI for the testing of succinylcholine? Not succinylmonocholine.”

“I see. Yes. It’s the same extraction, the same LCC parameters, with a slide gradient.”

“I guess the question was—are you aware there isn’t a standard operating procedure for the testing of succinylcholine?”

“I didn’t see one specifically for succinylcholine.”

“All right. The standard operating procedure for succinylmonocholine that was apparently utilized in this case was adopted or created in 2001?”

“I’m not sure if it was 2001 or 2002,” Anderson replied.

“It was subsequently amended in 2006, was it not?”

“I’m not absolutely certain.”

“Do you recall any amendments going on, possibly even to your lab, that indicated succinylmonocholine can be produced naturally—so, as a consequence, report results of the same with great care?” Houston asked.

“That’s published in the literature for decomposing tissues.”

“And in this case, essentially what happened is Ms. Montgomery, the chemist, on the fly, converted the succinylmonocholine standard operating procedure to test for succinylcholine, correct?”

“Essentially, that’s correct.”

“And ‘on the fly’ means she sort of made it up as she went.”

“I don’t know what Ms. Montgomery had done, and I don’t know what her previous experience with that drug was, but it was just a simple extension of a validated procedure.”

Houston pointed out that Montgomery had testified at the preliminary hearing that she had never tested for succinylcholine for the purposes of testifying at trial. He asked Anderson if he was aware of any specific articles or journals that indicate that it is acceptable to modify the standard operating procedure utilized to test for succinylmonocholine for the testing of succinylcholine.

“I don’t know that I’ve seen that . . . no.”

Prompted by Houston’s questions, Anderson explained that “method validation” means that it can be shown that the method of testing is reliable, that false positives aren’t present, and that it can be shown that the testing is reproducible and not subject to interference. He stated that he believed the FBI lab had followed standard operating procedure regarding the testing of Kathy’s urine.

During the course of questioning the state’s witness, Houston managed to go on record with regard to his concerns about the controls placed on Kathy’s urine while it was in one of the FBI lab’s refrigerators; how succinylcholine had been added to “John Doe” urine and then attempted to use a liquid chromatograph mass spectrometer to detect its presence; how a power failure had occurred at the FBI lab while Montgomery had been in the middle of repeating the testing procedure after finding evidence of succinylmonocholine in the initial screening of Kathy’s urine; how there was no evidence that a technician came in after the power failure to certify that the liquid chromatograph mass spectrometer was operating properly; and how a bag of succinylcholine used in the controls had sat on the shelf in the FBI lab since 1998.

Houston’s efforts obviously had been to cast doubt on the FBI lab’s methods involved in determining the presence of succinylcholine in Kathy’s urine, and to get it into the record in the process—it might be grounds he could use for appeal in the event that Chaz was convicted. Houston also brought out the fact that a drug screen had been done on Kathy’s urine prior to sending it to the FBI lab in which no evidence of drugs, such as epinephrine, heparin, or atropine, had been found, and drove home his inferences that some of the toxicology results may have been assumed.

“Doctor, you understand the problems in the science of forensic toxicology of assuming a result, true?”

“Certainly.”

“And we’ve seen that demonstrated in the Sybers case, correct?”

Dr. William Sybers was the Panama City, Florida, medical examiner who had been accused of killing his wife with a lethal injection of succinylcholine in 1991, and whose conviction was later reversed based on problems with the scientific evidence.

“Yes.”

“And we’ve seen that demonstrated in the Sybers case, correct?”

“Yes.”

“And you’re very familiar with the notion that in the Sybers case it was stated unequivocally that succinylmonocholine cannot exist in the system endogenously (originating within), correct?” Houston asked.

“I think . . . something to that effect,” Anderson replied.

“Sybers was convicted and served a great period of time before that scientific theory was corrected, did he not?”

“Yes.”

“So the better thing to do prior to the time of assuming what a certain test may give us is to actually do the test.”

“Well, I think you have to temper that with reason, Mr. Houston. There are thousands of drugs that are available. No one can test them all . . . and in this case, for scientific reasons that are straightforward, the drugs you mentioned, for example, couldn’t possibly interfere . . . with succinylcholine. The succinylmonocholine issue was one of interpretation of those results, not one of contradiction of the analytical results.”

“Doctor, the short answer is—whatever Ms. Augustine may have had in her urine was not duplicated in the FBI laboratory in the normal ‘John Doe’ urine for control samples, correct?”

“I guess I really don’t know the answer to that, because I don’t know where the control samples were,” Anderson responded.

“Well, wouldn’t it be important since you’re here discussing the method of validation, and how you approve of that, to know something of the control samples that were utilized in order to achieve the result?”

“Well, they were just negative control urines. I mean—”

“How do you know, Doctor?”

“That is all I can tell you. I can only go by what was in the FBI documentation. I have no firsthand knowledge of where those specimens came from.”

“Right. Or in what condition they were in.”

“No.”

“Or in what condition they may have degraded to after they had been stored in a refrigerator for three days after the succinylcholine had been introduced to the urine. Were you aware of that?”

“I thought we were talking about the negative control urines.”

“We are talking about the urines in general. I think we have three sets of urine. We’ve got Kathy Augustine’s sample urine, allegedly Kathy Augustine’s, correct? Then we’ve got the urine that was created, I am assuming the ‘John Doe’ urine to be positive. And then we’ve got the urine that’s created, ‘John Doe’ urine again, for the purposes of negative control sampling.”

“Yes.”

“All right. Were you aware all of that urine was placed in a refrigerator for three days after the power outage where the liquid blah, blah, blah machine would not work?”

“I was not aware of that specifically.”

“What would the studies or journals that tell us that the urine degradation with succinylcholine already added wouldn’t somehow impact or affect the testing mechanism that was utilized?”

“I don’t think that particular experiment has ever been reported.”

“Doctor, when we consider what we refer to as standard operating procedure, do you have a standard operating procedure to produce the safeguards that the test will be appropriately done?”

“Normally, yes.”

“And do you know by looking at the records, the data package, in this particular case, whether Ms. Montgomery sought any sort of assistance or peer review of her methodology referencing the modification of the succinylmonocholine standard operating procedure adopted in 2001?”

“The only documentation . . . I could possibly see was that it was reviewed by the chief of the FBI section, Dr. Marc LeBeau. So he obviously looked at it and approved it. And there’s a quality control person signature on it. Frankly, I don’t know whether that person would know or not. I do know Dr. LeBeau’s knowledge.”

Houston pointed out that from information included in the data package that the testing was done solely by Montgomery. He also asked questions regarding the alleged injection site on Kathy’s left buttock, and confirmed that the suspicious site had been tested and that test had been negative for any residue of succinylcholine or succinylmonocholine. He pointed out that tests had also been performed on Kathy’s blood plasma that had been obtained from two separate draws nearly two hours apart the morning Kathy had been rushed to the hospital, and those tests, too, had turned out negative.

“And all other testing that was done was actually negative for the presence of succinylcholine or succinylmonocholine, correct?”

“That’s right.”

“And the only test that resulted in a positive was the test performed solely by Ms. Montgomery on the urine.”

“Yes. That’s correct.”

“Doctor, have you ever tested for succinylcholine?”

“I have not.”

“Thank you.”

 

 

On redirect, Tom Barb questioned his witness about the alleged injection site and confirmed that the fact that the tissue sample from that site had turned out negative for succinylcholine and succinylmonocholine had been the result that Anderson had expected, and was therefore not shocking or surprising to the chief toxicologist.

“And you expected that because succinylcholine would go away in a live body fairly rapidly, is that correct?”