An Almost Perfect Murder (24 page)

During the course of Jenkins’s testimony, it was brought out that a note had been found inside a black binder in the master bedroom of the Otter Way house that read:
Fly flag at half mast for Kathy,
and another that said:
Contact Dominic Gentile for protection.
Jenkins’s testimony never provided any further information regarding those notes, nor did he speculate as to what they meant. Jenkins’s testimony never really brought anything new or fresh to the table, and at times had seemed, correctly, like a formality that needed to be carried out.

 

 

When David Houston cross-examined Jenkins, he indicated that a skin assessment had been done on Kathy while she was in the ICU on July 8 that indicated that she had no wounds that anyone had notated.

“And as the case agent in this particular matter,” Houston said, “you’re aware there were a number of people interviewed that had direct contact with Kathy Augustine during the early-morning hours of July eighth while she was in the hospital, true?”

“Yes, sir,” Jenkins responded.

“Not one of those people indicated ever having observed a punctate-type injury to the left buttock, did they?”

“No.”

“When did that punctate-type injury occur, Detective?”

“Are you asking for my opinion?”

“No. I want your personal knowledge. I know what your opinion is.”

“Prior to her death, sir.”

“Would it surprise you to note that Dr. Sohn is a forensic pathologist, [and] testified that that punctate-type injury is acute and could not be any older than forty-eight hours, dating back?”

“That would surprise me.”

“Well, if that’s true, there was no injection port for the succinylcholine by Chaz Higgs, was there?”

“I’m sorry. What, sir?”

“There’s no place for Chaz Higgs to have injected her with succinylcholine if this mark is acute, is there?”

“I’m sorry, sir,” Jenkins said. “I didn’t—I said I would be surprised if that was Dr. Sohn’s testimony, but—”

“Well, it was. Do you know Dr. Sohn?”

“I do, sir.”

“And you respect Dr. Sohn, don’t you?”

“I haven’t dealt with Dr. Sohn for a number of years. I don’t believe he’s been active recently.”

“Well, he, as a matter of fact, used to work with you on homicide cases, didn’t he?”

“Yes, sir.”

“Did you respect him then?”

“I think he’s a very nice man.”

“Okay. All of the other injection sites according to your investigation on Kathy Augustine are therapeutic, save and except this one site on the left buttock, correct?”

“Correct.”

“If this injection site on the left buttock was not there during the early-morning hours of July eighth, and there is succinylcholine in her system, it would have to come then from one of the medical therapeutic injection sites, wouldn’t it?”

“Could you repeat that again, sir?”

“Sure. If there’s succinylcholine in Kathy Augustine’s system, and if this mark on the left buttock is not there on the morning of July eighth, then the succinylcholine would have to have come from one of the therapeutic injection sites, correct?”

“No, sir.”

“Well, how else would you think it got there?”

“Well, to my understanding—” Jenkins attempted to respond, but was cut off in midsentence by Houston.

“Do you know?”

“—there could have been other ways to administer succinylcholine.”

“Oh, I see. You think it was atomized and sprayed in her mouth, or something?”

“Certainly, that would not be my first choice.”

During Dr. Ellen Clark’s testimony on Friday, June 22, 2007, she told the Washoe County jury that a skilled nurse is capable of injecting a person without leaving a needle mark that can be detected during the autopsy. Clark, who performed the autopsy on Kathy Augustine’s body, testified that the baffling puncture mark she found on Kathy’s left buttock may not have even been a needle mark. It was possible, she said, that Kathy had been injected in a different area of her body in which no needle track had been left.

“A good nurse could have delivered it in a manner I did not detect,” Clark said.

According to Clark, there was an approximate 50 percent chance that the suspect mark on her left buttock had been caused by a needle puncture. Nonetheless, using photographs that had been marked as exhibits, Clark pointed out an area where there was some blue-green and purple or red discoloration.

“There were actually two punctate areas of discoloration that are potentially significant,” she said, “because they have an overall configuration in appearance that would be consistent with needle punctures or injection sites.”

Clark explained how she had examined the punctate areas further by doing what is referred to as “cut-downs,” which is simply making a straight surgical incision with a scalpel or other sharp cutting instrument to examine the skin and tissue underneath the exterior wound. She said that the procedure had established the presence of a thin path of bleeding into the tissue that was “directly beneath some of the punctate or very small injuries on the surface.” She said that she had followed that same procedure for several of Kathy’s punctate wounds, including those that “were obviously associated with therapeutic IV or intravenous tubing and such.” She testified that the buttocks wound had not shown up anywhere in Kathy’s medical records as having been a therapeutic injury. She also provided details of the internal examination of Kathy’s body during autopsy.

“The internal exam particularly involving inspection of the brain showed that the brain was swollen,” Clark said. “This is a nonspecific finding, but certainly a swollen brain can be associated with decreased blood flow or decreased oxygen to the brain, so that became a significant finding.”

Because Kathy had been brought to the hospital with the presumption that she had suffered a heart attack, the internal examination of her heart was noted as being particularly significant. Clark said that she had found “no evidence of occlusion” or obstruction of the coronary arteries, but that the examination had shown some evidence of mild myxomatous degeneration, a deteriorative change within “one of the valves called the mitral valve.” However, she said, the degeneration of the mitral valve had been minimal, and she had not found any evidence of significant scarring or “fixed injury of that valve.” She had found, however, evidence of necrosis in the heart.

“I saw evidence under the microscope of rather extensive necrosis,” she told the jury. “These were areas of very pinpoint degenerative changes or actually cell death in the heart muscle. And they were distributed widely all over the heart in virtually every section that I examined microscopically.”

“Would it be fair for me to say that a global necrosis that you observed could be caused by lack of oxygen?” Barb asked.

“Yes.”

“Would it always be caused by lack of oxygen?”

“No.”

“What other reasons would there be of global necrosis?”

“Global necrosis in this case is different or contrasts with what we call localized or zonal necrosis,” Clark said. “When a person typically suffers a heart attack, they experience an occlusion or a spasm in one of the main coronary arteries.”

She explained that the coronary arteries carry blood and oxygen to specific areas of the heart. For example, she said, the left coronary artery that runs down the front of the heart brings oxygen and blood to the front and the left side of the heart. Similarly, the artery that runs to the right side in the back of the heart carries blood and oxygen to that area.

“So when we see a typical heart attack with an occluded artery,” she continued, “we look for injury in that zone or that distribution of blood flow. In this case, that was not present. Rather, microscopically, there were very small pinpoint areas of heart cell death and inflammation. This characteristic or this distribution of the injury is highly characteristic of a global or a large and uniform insult to the heart, as we might see with shock, for example, or with something like an epinephrine surge. . . .”

“Did you also do a microscopic exam of the brain tissue?” Barb asked.

“Yes.”

“Did you find the same necrosis there? I mean, different cell, the same kind of necrosis there?”

“I didn’t find necrosis in the brain tissue,” Clark said. “The brain tends to heal or respond to injury in a manner quite different than other tissues in the body. So in the brain, rather than necrosis, I saw evidence of swelling and leakage of fluid outside the normal blood vessel spaces around the cells themselves. I did see . . . what I would term degenerative changes of major nerve cells in the brain, but not, per se, necrosis like was in the heart.”

“Was what you observed in the brain consistent with a lack of oxygen?”

“Yes.”

“Did you see any brain bleeding, or brain bleed, as some people call it?”

“No.”

“Any evidence that you can determine from that examination of a stroke?”

“No.”

“Dr. Clark, Dr. Sohn testified . . . that the injection site was . . . at most forty-eight hours old,” Barb said. “Do you agree with that?”

“No.”

“Why not?”

“Because . . . Dr. Sohn kept referring to blood in the wound or the injection site,” Clark testified. “Blood in the injection site has no relevance to aging.... We always see blood in—excuse me—I’m not going to refer to it as an injection site, but we always see blood in a bruise or a skin-break injury, provided that the heart is beating and blood is circulating after the injury occurs. The description of blood in a wound does not bear any relevance to dating that wound.

“He made reference to the color of the wound,” Clark continued, “specifically regarding red-to-purple coloration. In fact, in Miss Augustine’s intravenous lines, which were placed actually at the time she was partially resuscitated at her home, she had red and purple discoloration. We know that those wounds predated death by at least seventy-two hours. Actually, about three-and-a-half days. That’s when those IVs were placed. Also, as a course of my study, I have done many, many autopsies, between four and five thousand personally, and I have looked at bruises on many occasions, both macroscopically or grossly and microscopically, and found extreme variation in the rapidity of healing, the type of healing, and the type of inflammation.”

As an example regarding the differences in how people heal, if a person bumped his knee and had a purple bruise that took days to weeks to heal, and went through the usual color change phases of blue to green to yellow, and eventually gone, the length of time for the healing depends largely upon a person’s complexion color, how healthy the person is, and how rapidly a person heals, “based upon the amount of bleeding into the injury,” Clark explained.

“So in my experience, and also within the literature, it is very precarious to date bruises specifically based upon the coloration of the body,” Clark said.

Clark described how she had performed the autopsy on Kathy Augustine’s body on July 12, 2006, but had not signed the autopsy report until October 26, 2006, with a cause of death because she had been waiting for the toxicology report from the FBI laboratory. In cases such as this one, toxicology reports are crucial to determining the cause of death because of the supposition or suspicion that drugs may have been consumed or that poisoning may have occurred. When she received those reports, she said, she stated that her opinion was that Kathy had died from succinylcholine toxicity, meaning that Kathy had been poisoned by the drug.

During cross-examination, Baum grilled Clark about the punctate wound, driving home the point that Clark had not called the injury in question a needle mark. She explained that she was not specifically identifying the injury as a needle puncture “to the exclusion of any other mechanism of trauma.”

“You are not prepared to say to a reasonable medical certainty that it was a needle mark or an injection site?” Baum asked.

“If you can define reasonable degree of medical certainty,” she replied. “If I’m fifty-one percent certain that that wound is a needle puncture mark, I would say yes, it is that characteristic or specific.”

Clark and the defense attorney finally agreed that it was her opinion that there was a fifty-fifty chance that the injury was a needle mark.

“Prior to your getting back the report from the FBI, if there had been no report from the FBI, or if the report from the FBI had been negative for any drug or toxics, to what would you have attributed the cause of death in this case?” Baum asked.

“I would have attributed the cause of death to myocardial necrosis or heart muscle injury of undetermined etiology, because it did not have a classic distribution for anything that I could identify as directly having caused it at the autopsy examination.”

Although Baum took the witness through a series of questions about mitral valve regurgitation and established through Dr. Clark’s responses that, although rare, the condition can lead to sudden cardiac death, the subject, along with other considerations such as stress, being overweight, and so forth, was left open. It would be up to the jury to determine how they might view such a possibility. The one thing that was certain, however, was that the state’s case against Chaz Higgs had clearly hinged upon the FBI laboratory’s toxicological report. Without it, there would have been no case for the state to pursue against him.

Before he wrapped up his cross-examination of Dr. Clark, Baum hammered the possibility that, assuming that the FBI’s toxicology report was correct and that Dr. Sohn’s testimony about the timing of when the suspected injection injury to her buttocks occurred had also been correct, it was possible that Kathy had received the succinylcholine through a different entrance or portal into her body at a time that was possibly later than what the state had alleged.

“You’re saying that this isn’t the injection site where succinylcholine was delivered,” Clark confirmed.

“But that they do find succinylcholine and succinylmonocholine in her urine,” Baum clarified. “There would have to be some other explanation for how it got there.”

“That’s correct,” Clark agreed.

Clark agreed that she could not say with absolute certainty that the suspected injection was in fact an injection site, or that the suspected site had been the way that the succinylcholine had been delivered. On the other hand, she agreed with the prosecutor on redirect that succinylcholine poisoning can explain everything that she observed during the course of the autopsy.

 

 

Later in the day, the jury heard testimony from nurses Kathryn Almaraz and Tina Carbone, both of whom testified that Chaz had appeared to become increasingly harsh in his statements about Kathy because of the marital problems he allegedly had with her. Both women characterized Chaz as an excellent nurse who possessed good patient skills, but said that his marriage had seemed to deteriorate during the time of Kathy’s impeachment proceedings. They also testified to Kathy’s jealousy and how she had harassed and threatened them, sometimes showing up unannounced at the hospital to demand his paycheck.

Almaraz recounted for the jury’s benefit how Chaz had referred to his wife as a “bitch,” and how on one occasion he had allegedly said, “If I didn’t have a daughter in Las Vegas, I would kill my wife and throw her down a mine shaft.” Almaraz also testified under cross-examination how, despite Chaz’s purported comment about killing his wife, she hadn’t told the police about the comment until Jenkins interviewed her on February 14, 2007.

“Ma’am, would it be a fair statement that at the time the statement was made you didn’t take Mr. Higgs seriously?”

“It’s not—it was not my decision if it was serious or not,” Almaraz responded. “When a person is angry at their spouse, as I am with my husband sometimes, ‘Oh, gosh, you know, he left the toilet seat up again. I’d like to kill him for that.’ That seems normal to me. But to say something as calculated as strangling or hurting someone and wanting to throw them down a mine shaft, that seems a little bit excessive to me.”

Although the state had planned to call Linda Ramirez to testify that afternoon regarding the flirtatious e-mail exchanges between her and Chaz Higgs, the judge decided to recess for the weekend early, thus ending the first week of the murder trial.