Killer Nurse (13 page)

CHAPTER
14

INEFFECTIVE COUNSEL

After Kimberly Clark Saenz's indictment, Clyde Herrington could easily have asked for no bail to be granted. The posting of bail is not required in capital murder cases. However, if Herrington asked for no bail, the defense attorney could have filed a writ of habeas corpus, a legal action that requires the arrested person to be brought before the court. The writ ensures that people aren't detained unlawfully or without evidence.

If the writ was filed, Herrington would then have been forced to put on his case before the court. With all of his expert witnesses out of state, it would have cost thousands of dollars to get them to Lufkin for the writ hearing, then he'd have to do the same thing again when the trial actually began—all at the cost of the taxpayer. Plus, he wasn't ready to put the evidence on yet. For all those reasons, he didn't make a recommendation for no bail.

Judge Bryan had set her bail at $500,000, which required her to post 10 percent, i.e. $50,000 if they used a bail company.

However, Texas is actually one of the few states that allow attorneys to act as bail bond agents. A bond is simply a guarantee that the accused will show up in court if let out of jail. In most cases, a bail bond company handles the bonds. The accused or family of the accused puts 10 percent of the bond down, and then the bail bond company guarantees the rest to the court. The 10 percent paid to the bond company is their fee for getting the accused out of jail. This is money the person will never get back. In Saenz's case, she or the family needed to post 50,000 nonrefundable dollars. If the person skips and doesn't appear for the court hearing, the bond company would be required to pay the entire bond.

Attorney bonds in Texas work almost the same but with an exception: the money paid for the bond is supposed to be used in the person's defense. However, the American Bar Association is not an advocate of the Texas law that allows the practice. The Association believes that the practice can lead to conflicts of interest, and pit the attorney's own financial interests against his or her duty to fight for clients in court.

Because Herrington didn't oppose bail, and Deaton posted it for Saenz, the country got to see a rarity—an accused serial killer walking the street for almost four years waiting for trial. The fact that Saenz, accused of five murders and of severely harming five others, had the run of the courthouse was a topic much discussed by courthouse people as well as citizens.

Defense attorney Steve Taylor said after the trial, “Jacob Hopper's college fund was raided to pay Deaton, and he was devastated.” Jacob was Saenz's son from her first marriage. Cheryl Pettry, a mitigation specialist, said, “Saenz's parents apparently had control of Jacob's college fund and used it for the bond.” She echoed what Taylor said about the young man being devastated.

Saenz also had some stipulations beyond money set on her bail. She would have to wear a GPS tracking device on her ankle, and she was limited to movement inside the county line. She was not allowed to contact any of the victims, and like before, she was not to seek jobs in the medical profession.

After Judge Bryan set bail, the date of April 5, 2010—almost exactly a year later—was set for the beginning of jury selection for the Saenz trial, later moved to August 9, 2011, for
voir dire
, and September 2011 for the trial.

However, in early August 2011, the defense team again asked for a continuance—Ryan Deaton said that he hadn't had time to properly prepare for the expert witnesses—and it surprised a lot of people when the judge granted it. Very few people knew that this was the right thing to say to Judge Bryan at that moment.

The Saenz investigation and case involved many interesting and unique people, but none like Judge Barry Bryan.

Physically, he tended not to conform too slavishly to any one look. His silver hair was sometimes on the short side, and sometimes longish. Sometimes he had a silvery half-beard, and sometimes he was clean-shaven. He seldom wore a robe in the courtroom and his bailiff didn't announce his arrival. He just opened the door and walked in as he waved everyone to remain seated. Pretentious, he was not.

When asked about his childhood activities growing up, Bryan's response was, “Any club worth being in wouldn't have me,” a twist on the classic Groucho Marx line. Judge Bryan may never have been in the Boy Scouts, but he did serve as the district chairman of the Boy Scouts as an adult.

In many ways, Bryan's career path mirrored Steve Taylor's. After high school, he built houses for several years. Then he graduated from Stephen F. Austin in Nacogdoches in 1986 and then law school at SMU.

He was a criminal defense attorney from 1990 until 2003, and like Taylor, was certified in death penalty cases. He'd defended several clients charged with capital murder in Angelina and Jasper Counties, but never went to trial.

Prior to 2003, he was a member of the Angelina County Bar Association, State Bar of Texas, National Association of Criminal Defense Lawyers, and the National Homebuilders Association. In 2003, he became the Angelina County Court at Law 2 judge. He was the County Court judge until 2006, when Texas Governor Rick Perry appointed him to serve the unexpired term as judge for the 217th district court in Angelina County.

As the presiding judge of the 217th district court, Bryan now had the responsibility of overseeing the most high-profile case in the county's history. However, an unrelated case in Angelina County that occurred in June 2005 before he became district judge seemed to have an influence on Judge Bryan's decision to grant Deaton's request for a continuance.

In late May 2011, three months before the Saenz trial was scheduled to begin, Gerardo Flores, serving two life sentences for stomping his pregnant sixteen-year-old girlfriend's stomach, causing the deaths of their unborn twin boys, was brought back to Angelina County.

Flores was scheduled to appear before Judge Bryan, who heard an argument for ineffective council against the original trial attorney. The appeal's attorney believed the original attorney—Ryan Deaton—was ineffective because of the way he handled the expert witnesses in the Flores case.

Deaton told Jessica Cooley of
The
Lufkin News
, “That is pretty common in a case like this where a life sentence is issued,” but when Deaton asked the judge for the extra time to properly prepare for the expert witnesses, the judge allowed it. Judge Bryan's worst enemies would say that he was fair, and if Deaton was ineffective in the Saenz trial, it wouldn't be because Bryan hadn't allowed him the time to prepare. The judge set a new date of March 5, 2012, for the trial.

* * *

Trial preparations were a different process for both sides. Clyde Herrington, though he was the clear leader of the prosecution team, delegated areas of responsibility. Layne Thompson would handle all the questions about the water in DaVita, the expert witnesses, and everything to do with the water purification process. Chris Tortorice would handle the sciences and the medical experts in the case, and Herrington would handle all the rest of the witnesses. It was an equitable partnership of the humongous caseload.

While Herrington was taking care of the legal end, he gave a lot of credit to Sergeant Steve Abbott. “Abbott's the most modest person I've ever seen,” Herrington said. “He's quiet but very bright. Not only that, but he has the ability to get people to cooperate with him.” Herrington went on to say, “Abbott was able to work well with the different law enforcement agencies that were helping in the investigation. In a lot of cases, there are jealousies and rivalries with law enforcement groups, but not in this case, and Abbott was the reason.”

He also pointed to Abbott's tireless work ethic. In January 2011, Abbott moved his office from the police department to the courthouse. Herrington said, “It was nothing for Abbott to work from seven in the morning to ten at night.”

By now, the DA wholeheartedly believed that Kimberly Saenz was a serial killer. The important thing to him was getting this person out of society so no one else died.

In Texas, the prosecutor is responsible for proving every one of the “elements of a crime” in order to convict the person charged. One of the hardest elements to prove in the Saenz case was that the victims had actually been murdered. In most homicides, that's the easy part—a homicide victim's cause of death is usually pretty obvious, like a gunshot wound. However, the death certificates listed Ms. Clara Strange's, Ms. Thelma Metcalf's, and Ms. Opal Few's causes of death as natural. Two of the women had been dead almost a month before the witnesses saw Saenz inject the two other patients with bleach, and before anyone would even consider something like this was possible. Second, Herrington had to prove that these crimes took place on a certain date and time, and third, that Saenz had intentionally or knowingly caused the deaths, and finally, that these crimes happened in Angelina County, Texas, where he had jurisdiction.

Complicating matters further, Saenz wasn't merely charged with murder—she was charged with
capital murder
. In other words, the prosecution had to prove all the elements of murder plus the fact that Saenz had killed more than one person in the same way. Usually only one of the elements would be in dispute, but in the Saenz case, they had to fight for each one of them.

Still, while the prosecution team's preparations went like a greased pig sliding down a chute, the defense team at times seemed to be stuck in the slop.

Cheryl Pettry was a mitigation specialist brought in by Steve Taylor. The American Bar Association stipulates that a mitigation specialist is a mandatory part of the defense team. The Association goes on to say that the mitigation specialist ensures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict.

Every trial has a second phase called the punishment phase if the defendant is found guilty in the first. The defense attorney may believe that he or she will get the client off, but has to prepare for that guilty verdict just as he or she does for the first phase. In capital cases, that's where the mitigation specialist comes in.

At the time of the Saenz trial, Cheryl Pettry had worked close to eighty capital cases—more than all the attorneys on the prosecution team and defense team put together—but she said the Saenz trial was one of the most unpleasant cases she'd ever worked on. While Pettry had good things to say about Kent and Bennie Fowler, and she was especially complimentary about Saenz's son, Jacob Hopper, she said that Kimberly Saenz, Ryan Deaton, and Vann Kelley, Deaton's investigator, made her job extremely difficult. For example, neither Saenz nor Deaton agreed to meet with Pettry or the psychologist about the case. Deaton insisted that Saenz was going to be found innocent, and Saenz believed him.

Pettry even had trouble just getting Saenz to confirm basic facts. For example, Saenz told the mitigation specialist that she'd graduated from Central School in Pollok, but when Pettry sent Central a subpoena for the school records, she only got the records up to the eleventh grade. It wasn't until much later that Pettry found out that the school hadn't sent the twelfth grade records because there weren't any—Saenz didn't graduate from high school. She quit after the eleventh grade.

“She's awful; she doesn't know how to tell the truth,” Pettry said. “I found out that she didn't even tell me the truth about most of her jobs. For example, she never told me she worked for the State School. I found that out on my own.”

Saenz also insisted that all of her family sit in the courtroom as the trial was in progress. That included her cousin, Jennifer Kujala, whom Saenz referred to as her best friend. However, if the family is in the courtroom, they can't be witnesses, and if it went to the second phase, Pettry would not have the people who knew Saenz best to attest to her character. Pettry said Kelley sent her e-mails saying they wouldn't need character witnesses because Saenz was going to be found innocent and there wouldn't be a penalty phase. Steve Taylor reiterated what Pettry said. “Kim insisted in writing that her family be allowed in the trial, and that made them ineligible to testify in the punishment phase.”

The one close family member who did not attend Saenz's trial was her brother, Cody Fowler. However, Pettry said she met him once briefly and knew instantly that they didn't want him on the stand.

Pettry said she would never work with that group again.

Taylor echoed her sentiments. “The defense of Saenz, preparations, and the trial was not a good experience for me. It was not a good experience working with Deaton—not a good experience at all. I wouldn't do it again.”

Taylor used the analogy of Deaton wanting to go to the big dance but not being able to go there by himself. He needed a partner to get there, but once he got in the door, he dumped his “date.” From that time on, Taylor was excluded from everything. He didn't know who the experts were or what they were going to say. He had the documents that listed who would testify, but he had no idea what they would say.