Killer Nurse (21 page)

Her crying at this point left people shaking their heads. Had she only just woken up and realized that she was on trial for killing five people and facing the death penalty? Or had she just discovered that it wasn't going all that well?

The party was without a doubt over, but Tortorice wasn't close to turning out the lights yet. He took Dr. Gruszecki through mistakes she'd made on hemolysis, or cell damage. He questioned her about a phantom article she'd quoted from but couldn't recall anything substantial about—like who wrote or who published it.

Up to that point Tortorice had made Dr. Gruszecki look foolish, but now he was about to totally discredit this medical professional and the hopes of the defense. He focused on two huge statements that she'd said on Friday.

“Let's talk about Ms. Clara Strange,” he began. “You testified on Friday—very confidently, I might add, three or four times—that you didn't see anything abnormal in Clara Strange's lab values. Is that correct?”

Dr. Gruszecki looked at her notes, and glanced up. “Nothing to do with hemolysis, correct.”

Tortorice asked the judge for permission to approach, and when the judge gave him permission, he strode to the witness stand and handed her Ms. Strange's medical records. “Please find Ms. Strange's lab values.”

Dr. Gruszecki began leafing through them one by one until she reached the end and began to flip through them again.

Tortorice had stood with his arms crossed, waiting, but finally said, “Doctor, maybe it will save you some time if you recall from her medical records that she was dead on arrival at the hospital and didn't have blood drawn. Is that correct?”

A resounding gasp swept through the courtroom, and then the room fell deathly quiet except for Saenz's sobs.

Dr. Gruszecki paused for a while. What was going through her head then was anyone's guess. Finally she said, “That's correct.”

Tortorice went in for the kill. “So when you told this jury you didn't see anything abnormal in her lab values, that was probably because she didn't have any blood drawn, right?”

Now with a permanent frown, she said, “Um, it could be.”

Still standing, Tortorice asked, “Could be?”

Dr. Gruszecki didn't bother to answer, but again, she really didn't need to.

Tortorice twisted the knife. “You said of Ms. Strange, you would expect her to be in pain and have massive hemolysis. Would you agree with me that she probably didn't complain about pain because her heart wasn't beating, correct?”

Sheepishly she said, “That would be true.”

“And you'll agree with me that your statement that you would expect to see massive hemolysis was misguided because there were no lab values?”

Dr. Gruszecki responded the only way she could. “It was an error on my part.”

Without a doubt that was the biggest understatement in the trial.

Dr. Gruszecki also tried to convince the jurors that Mr. Garlin Kelley had died from what the spectators termed “five-minute pneumonia.” He'd gone from resting comfortably and watching TV with no symptoms of pneumonia, or anything else for that matter, to five minutes later unresponsive. When pressed on the matter, Dr. Gruszecki would not agree with Tortorice that Mr. Kelley's cause of death might be attributed to the bleach found in his bloodlines and in the syringe still hanging from them, and she placed no importance on the extremely high 3-chlorotyrosine levels in his blood.

But by this point, no one was listening to her anyway. The youngest member of the prosecution team, the one who didn't have the experience the other two did, had effectively killed her testimony and discredited her.

In an interview after the trial, Herrington smiled and said, “That Gruszecki cross was good, wasn't it.”

The boy had turned into Superman in front of everyone's eyes.

CHAPTER
21

THE VERDICT

The party attitude that Saenz and the defense had exhibited throughout the trial didn't return after prosecutor Chris Tortorice discredited their expert witness, Dr. Gruszecki. It was as if only now, four weeks into the trial, the defense team and the defendant had suddenly realized that the trial was about murder and the death penalty—not a misdemeanor.

After Deaton rested, Herington called several witnesses as rebuttals, but in effect, the trial was over. Wednesday, March 28, 2012, after the owl's pronouncement and Herrington's powerful closing argument, the jury retired to find justice.

With the announcement of a pending verdict from the jury, for the first time during the trial, Kimberly Clark Saenz, her family, and her attorneys entered the courthouse and the second floor by the back way, evidently keeping away from the media and the hallway packed with spectators.

The people who gathered in the courthouse all had different opinions and came by them by different means. But none of those would be the ones who had to make the decision. That fell on the shoulders of twelve people. Both sides had participated in the process of picking the jurors, all, including Saenz, had signed off that those twelve were unbiased strangers with no preconceived ideas of guilt or innocence, who would listen to all the evidence and make an honest and fair decision.

When whispers began flying around the hallway that the jury had a verdict, Deaton for the first time hustled the family into a County Court at Law room down the hall from the district courtroom. The door had a combination lock on it and guaranteed privacy. The last thing the spectators saw as the group disappeared into the room was Saenz's young daughter, her first appearance at the trial, almost inconsolable, being helped into the room.

Some believed that Herrington was responsible for this. He was the one who had persecuted an innocent Christian woman—threatened to take her from her family.

The sight of Saenz's daughter was sobering to everyone in the hallway who witnessed her grief. It was a reminder of how many victims there were in this case, and not only the ones who had died.

* * *

Kimberly Saenz, flanked by both of her attorneys, stood as Judge Bryan held the charge sheet to announce the jury's verdict. No place on earth could have been quieter than the courtroom. The hundreds of people packed in simply didn't move or breathe.

The judge's voice cracked with tension as he read the verdict aloud. “On count one, aggravated assault with a deadly weapon”—this was Ms. Marva Rhone's—“the jury finds Kimberly Saenz guilty as charged.”

A shudder visibly sped through Saenz's family in the front row. Saenz's knees wobbled as if she was having trouble standing.

The judge continued, “On count two, aggravated assault with a deadly weapon”—this was Ms. Carolyn Risinger—“the jury finds Kimberly Saenz not guilty.”

Still no words were uttered but hope seemed to buoy one side of the courtroom.

“On count three, aggravated assault with a deadly weapon”—this was Ms. Graciela Castaneda—“the jury finds Kimberly Saenz not guilty.”

As optimism swept through the Saenz side, the judge continued to announce the verdicts without glancing up. His gaze remained riveted on the charge sheet.

Inside the courtroom, the tension was almost unbearable.

“On count four, aggravated assault with a deadly weapon”—this was Ms. Marie Bradley—“the jury finds Kimberly Saenz guilty as charged.”

“On count five, aggravated assault with a deadly weapon”—this was Ms. Debra Oates—“the jury finds Kimberly Saenz guilty as charged.”

With three guilty verdicts on the aggravated assaults, Kimberly Saenz would most likely go to jail for a long time. The maximum the jury could give her was twenty years each, but on the other hand, they could opt to only give her probation.

Still, those first five charges were comparatively insignificant to everyone but the victims. It was the sixth charge that everyone waited to hear. Herrington had combined Ms. Clara Strange, Ms. Thelma Metcalf, Mr. Garlin Kelley, Ms. Cora Bryant, and Ms. Opal Few's murders into a single capital murder charge. Capital murder is regular murder plus something extra. In this case, the extra was intentionally or knowingly murdering more than one person during the same criminal episode or pursuant to the same scheme or course of conduct. This meant that the jury only had to find Kimberly Saenz guilty of two of those murders in order to find her guilty of capital murder because two would constitute more than one person during the same criminal episode or pursuant to the same scheme or course of conduct.

If she was found guilty of capital murder, then the least she could get was life in prison without the possibility of parole. The maximum sentence was the death penalty.

Before the judge announced the last and most important verdict, the law enforcement officers standing against the walls and surrounding the spectators eased forward a half step, almost as if they'd rehearsed it.

For the first time since he began reading the charges, Judge Bryan looked up at the defendant. “On count six, capital murder, the jury finds Kimberly Saenz . . . guilty as charged.”

For several seconds the entire courtroom stood in frozen, stunned silence. Then as one a collective breath whooshed from everyone—a long pent-up breath of relief from the prosecution and the victims and their loved ones, and an agonized, visceral deflating one from the defense and the Saenz supporters. If there were wails of anguish or cries of joy, they were drowned out by the mad stampeding of feet as the media rushed outside getting into position to interview the spectators.

Before the judge announced the verdict, the spectators centered their attention either on Saenz and her attorneys, on the judge, or on the jury. Four deputy sheriffs standing in the court section close to the defense table went unnoticed.

Outside the double doors of the courtroom,
The
Lufkin News
photographer had been poised to capture the reaction of the family as the last charge was announced. He wasn't disappointed. He clicked just as Saenz's father buried his face in his hands. Although Kent Fowler's face isn't shown, the picture succeeds in capturing the total anguish of a father.

The photographer's next shot captured Saenz herself, heavyset, face constricted, eyes swollen from crying, and her right hand in the process of covering her face as she turned to face her family.

That was when the four deputies came into play. For the first time in four years, they placed Saenz in custody.

On the other side of the courtroom in the trial area, DA Clyde Herrington and Sergeant Stephen Abbott, two men who had put their reputations on the line for something they deeply believed, came together in a giant bear hug.

Initially, neither Abbott nor Herrington had believed what they'd heard about Saenz. Even when they'd started to change their minds about her guilt, they had doubts about getting a conviction. It was a case like no other. Never in the history of the United States had anyone been accused of and gone on trial for killing people with bleach.

Defense attorney Ryan Deaton sat slumped in his seat, as if he'd taken a giant blow to the stomach.

Some other spectators were simply too stunned to move. Quite a few of them had come out expecting to help Saenz and Deaton celebrate a great victory.

The news of the verdict swept through Angelina County as it did the entire country. However, only the citizens of Angelina County, many of whom had been basing their opinions on hearsay and the limited information they were getting from the media, seemed stunned by the verdict. A vast majority of locals believe that Saenz was going to be found not guilty.

As the courtroom emptied Friday evening, a realization hit. The jury had only given their verdict. The second phase of the trial was still to come on Monday morning, when the jury would gather to decide Saenz's punishment. The world had to wait to hear her fate, but the owl had already announced it.

Either way, Saenz's life as she knew it had ended.

CHAPTER
22

THE JURY

When the Kimberly Clark Saenz trial went to deliberations, the jurors had unanimously elected Larry Walker foreman of the jury. Many said later that this was the smartest decision that they made. His objective was to make sure the ones who talked the most didn't, and the ones who talked the least had their say.

Many in the audience said afterward that they'd assumed the jurors' minds had already been made up. People in the defense group claimed that they'd made a deal on guilt in the first phase, that all twelve couldn't be convinced of Saenz's guilt, so they said they wouldn't give her death if everyone voted guilty. Others said that they couldn't have been too sure of the witnesses if they hadn't found Saenz guilty on all of the aggravated assaults—especially Ms. Risinger.

The truth, however, was, there was no deal in the jury room. They hadn't made up their minds, and they all believed that Saenz was guilty of all of the murders, and all of the assaults, but unlike the murders, they didn't think the prosecution proved guilt beyond a reasonable doubt in the two assaults. After all, that was their charge to begin with. Hold the state accountable to proving beyond a reasonable doubt the allegations it had brought.

If there was a question or confusion, they stopped and discussed it or found the evidence to clear up what was bothering that juror. Walker later said that the jury had worked hard. They'd taken a few breaks but mostly they stayed on task.

The jury was not only intelligent, but extremely attentive. They took notes and were mentally engaged with every witness and every single piece of evidence. For the most part, they were fifteen strangers, five men and ten women—three of the men worked at Lufkin Industries, but not with one another.

During the trial, the jurors had come and gone from the jury room on the second floor, positioned down a small hallway behind the courtroom. (They were even able to problem-solve one issue early on; in the jury room, the men's restroom had three stalls, but the women's only one. To keep the peace, they ended up switching the names on the bathroom doors.) The jury room's location made it easy for the jurors to enter and leave the courtroom without encountering anyone else.

But once the trial portion ended, the court moved the jury up to the third floor. Perhaps the move was made for security measures. If so, it worked, because most people didn't realize the jury wasn't in their normal place.

The jurors were extremely emotional about the decisions they had to make. Martha Moffett said, “More than once we all held hands and prayed about this.” In fact, none of the jurors wanted to find Saenz guilty.

Larry Walker said, “We were really searching for the truth. But also there was three, four, or five—maybe all of us actually, that were really trying to find her not guilty.”

Walker also said, “They'd moved us up to the third floor and when we took a break we had to go out on the roof. I was afraid that someone might jump. There was some, several times we had to have a break because people were very emotional. I was worried someone was going to go overboard.”

He also said he found that when one female started crying, several joined in.

After they elected Walker as foreman, the jury's next decision was where to start? Should they begin by considering the five aggravated assaults or the five murders? They decided to start with the most important ones, the deaths.

First they called for a secret vote. The options were guilty, not guilty, or unsure, and the ballots came in split at six guilty, two not guilty, and four question marks.

In his closing, Herrington had said he thought Deaton would have stopped blaming the water by then. Deaton should have, because the jury had. That was the very first argument they dismissed. Once they decided the water hadn't been the problem, that took away at least a fourth of the ton of evidence they had to plow through.

Steve Taylor in an interview after the trial said, “Deaton spent most of the time chasing rabbit trails. Stuff that wasn't going to sell.” Rabbits protect their homes by leaving many different paths, but the jurors didn't follow them. They stayed with the evidence: the bloodlines and syringes. David Bradford became the jury's expert on this. As a contractor who'd started out as a plumber, he was very familiar with how liquids flowed through pipes and lines. He, like the other jurors, believed in this evidence, and would for the entire duration of the deliberation.

There was no doubt in any of the jurors' minds that there was bleach in those bloodlines and syringes, and not accidentally; it had been put there by someone. But who? That was the big question they had to answer.

Kimberly Flores said, “The jurors wrote on the chalkboard the names of the victims and put a plus if they had a positive bloodline or syringe or minus by their name if they didn't—it kind of guided them and what they were looking for—it helped with the guilty or not guilty.”

The jury never bought the DaVita conspiracy theory either. Larry Walker said, “We looked at it and quite frankly unless the DaVita people were experts there was no way they could have put the bleach in, stopped the blood flow at the points they did, done the things they did, I mean in the time that they had and given that they weren't prepared to do that sort of thing. So, that put us at a point that conspiracy was pretty much out the window.”

Kristine Bailey, the first alternate, who didn't participate in the deliberation process, said after the trial, “If it was a big conspiracy why here—why Lufkin? One thing Ryan said in his opening statement was DaVita was a big huge cooperation and had dialysis centers all over the world all using the same policy. Why was Lufkin the only one having issues? That didn't make any sense.”

She wasn't the only one who weighed in on the conspiracy theory. Deaton's rabbit trails didn't lead the jury away from the nest, but right to it. David Bradford said that whenever “Deaton made a big deal over how shoddy things were done and how could [Saenz] have done all of this with all these people not knowing, it was obvious. There was enough stupidity going on for her to get away easily with that kind of stuff.”

One of the problems that Bradford and the jury saw was each patient care person at DaVita, whether it was a nurse or PCT, cared for four patients at a time. There is a lot to do for the patients, and the health care professional needed to monitor the patients constantly. In April 2008, the state required end-stage renal disease facilities to have a patient-nurse/technician ratio of 4 to 1. Obviously DaVita met those guidelines. However, at DaVita, the nurses and PCTs worked with a “teammate.” When one went on break or lunch, the teammate took care of that one's patients. During those times, each one looked after eight patients.

It wasn't hard for the jury to see the pattern. Most of the ten incidents Saenz was accused of committing had happened during those break or lunch times.

Deaton inadvertently kept reminding the jury of this. He asked every DaVita employee, whether they still worked there or not, if they'd ever seen Kim do anything. Of course their answer was they hadn't. If they had, they would have said something. However, these questions always brought a redirect from Herrington. First he would ask them if they were paying attention to any other employee, and all of them responded, no, they were concentrating on their own patients.

Herrington's second question also helped the jury understand how this could happen under the employees' noses. “Was it unusual to see a DaVita nurse go around to the patient stations and help the patients?”

The obvious answer was of course not. That is what nurses do.

The jurors later talked about how Deaton had tried to claim that witnesses whose testimony didn't agree with another witness's must have been conspiring, but the jurors saw that differently. If there
had
been a conspiracy, with the employees using a script, then surely the witnesses' stories would have agreed. The same went for the employees whom Deaton had ridiculed for having so-called convenient memory losses; again, the jury saw those lapses as more signs that there
wasn't
a conspiracy. It had been four years, after all, and they thought it was normal for the employees to have had some memory discrepancies. Again, if there was the great conspiracy that Deaton tried to sell, the employees would have gone by the script.

In attempting to insinuate a conspiracy, Deaton had only managed to convince the jury that there wasn't one.

David Bradford said, “If Deaton had kept it on one level, he would have had better chance than beating them over the heads like dumbasses. When every guy that comes on the stand, he goes, ‘Do you know Joe Blow, he's on Fortune 500.' No, I haven't had lunch with him.”

Bradford was referring to an exchange that occurred when the first witness from the CDC testified. In Deaton's cross, he brought up the fact that a past CDC director was now on the DaVita board of directors. The witness had heard of the man, but didn't know him.

Deaton would ride that same dead horse with every CDC employee who followed—the insinuation in his question that their testimony was somehow linked to an ex-CDC director they didn't even know.

In his attempt to convince the jury about the big, money-grubbing Fortune 500 Company, Deaton forgot one aspect of that, but the jury didn't. Laura Bush, no relationship to the former president, said, “When you are talking about real time folks and locals, they're just trying to do their jobs.” The jury recognized those employees he ridiculed, many of whom no longer worked for DaVita by the time the trial came around, as honest, hardworking East Texans just trying to do their jobs and take care of their patients.

Deaton's aggressive style with witnesses also backfired in a concrete way with the jury. The jurors said that they were given everything they asked for, with one exception: when they asked for the transcript of Ms. Hall's testimony in the trial, the judge sent a note back that said he would give them a part of the transcript but not the whole transcript because there was a dispute with the attorneys. Ms. Linda Hall had been the first witness called by Herrington. She was also the one whom Deaton had attacked on the stand and drew reactions not only from the spectators but the jurors, too. Walker said that Ms. Hall's testimony in court was pretty compelling. “That was the only time I got choked up during the entire trial.”

But then one of the jurors remembered that while they were missing the court transcript of Ms. Hall's testimony, they actually already had the transcript of her deposition.

Since Ms. Hall had testified in person, there had been no need to watch her video deposition as they had Ms. Hamilton's, who had unfortunately not lived long enough to make it to trial. But several years before the trial took place, Herrington had taken video depositions of both women, and Herrington had placed the transcript of Ms. Hall's deposition into evidence and the jury had that.

So, instead of using her court testimony, they used her testimony in her deposition. Juror Caren Brooks read Ms. Hall's deposition aloud as foreman Larry Walker read the questions asked of her by Herrington and Scott Tatum, Saenz's previous attorney.

Kimberly Flores said, “The defense attorney tried to portray Ms. Hamilton and Ms. Hall, the two witnesses, as being weak and sick. That wasn't an issue to me. They saw what they saw. They'd been in dialysis for years and they saw something that wasn't right. To me, the eyewitnesses deserve a lot of credit.”

* * *

At the end of Thursday, the day the jury began deliberating, they held another silent vote, but this time Walker asked if they had a question mark last time, go ahead and put guilty or not guilty—whichever way they were leaning just so they could get a feel. He thought that would help them out but actually those question marks were split. They were now eight guilty and four not guilty.

In an interview after the trial, juror Daniel Phipps related how difficult the trial and the deliberation were for him. He said, “I wanted [Saenz] to be innocent so bad. You just don't know it. That Thursday night I might have slept maybe an hour to an hour and a half. I cried, I tossed, I turned. As a matter of fact, after it was all over, my wife told me, she said, ‘I'm so glad that this is over because I thought our marriage was going to break up because you were about to burst.'” Phipps said he pushed everyone away. “I couldn't even deal with my family.”

Like Daniel Phipps, all the other jurors' emotions were tearing them apart. But all of them had another issue to face besides the enormous weight on their shoulders. They were scared to death of jury misconduct. Every one of them was always very careful about it. All of them told about hearing rumors in the courthouse that Deaton's investigators were following the jurors around.

Walker said, “I think they were trying for jury misconduct, because when you go to the appeal you don't want to go before this three-judge panel. You want a new trial, and the best way to get that is with jury misconduct.”