Killer Nurse (14 page)

Taylor, the death penalty specialist, who also had a number of murder and death penalty cases under his belt, said his philosophy of criminal defense is to do the best he could for the client. Part of his job was to make sure that they are aware of all options and consequences so they could make the best decision. Because in the end, the client makes the decision.

Taylor said, “Capital litigation isn't pretty—someone is dead and someone caused that death. The best way to keep the client away from death when facing solid evidence in a capital case is to stop it before trial. You don't put your life in the hands of twelve strangers unless it is absolutely necessary.”

In cases of multiple deaths, Taylor said he didn't think there was ever a not-guilty verdict.

He said that there was a deal on the table from the prosecution leading up to trial, but it was never going to happen. According to Taylor, for some reason, Deaton and Saenz's husband were there to ensure she didn't take a deal.

In the time leading up to trial, meetings with the DA and hearings before the court on all matters of the judiciary process took place—normal proceedings in any criminal trial, but especially so in a death penalty case. Like most defendants, Saenz was present for all of them, but unlike most defendants, Saenz seemed to enjoy them, revel in them. As preparations for the trial intensified, it was Saenz who spent time going through all the documents that were in the case. She went with the defense group when they toured DaVita—showed them where everything was, did measurements, and demonstrated the lines of sight. Her attitude and actions caused quite a few raised eyebrows with the prosecution team and others who observed her in these situations. One psychologist concluded that Saenz might be a sociopath.

Saenz's mental state aside, the trial preparations for the two sides were vastly different. While the prosecution was preparing for battle, the defense proceeded as if they believed conviction was impossible. Following Deaton's lead, Saenz never seemed to consider any other outcome.

In early 2012, right before
voir dire
, Saenz in all her effervescent glory appeared before Judge Bryan with Ryan Deaton and his father, Thomas W. Deaton, to argue against allowing a prosecution expert witness to testify about the effects of bleach on living tissues. The expert witness in question was Dr. Mark Sochaski, director of analytical chemistry at the Hammer Institute for Health Research. Dr. Sochaski's knowledge came about because of his study of chlorine gas and its effects on rats.

One of the reasons the case was so hard to prove was because bleach in blood was undetectable. Bleach almost instantly attaches itself to the substances in blood like amino acids. But the
effects
of the bleach can be seen by the presence of 3-chlorotyrosine, a specific marker of protein damage in the body caused by bleach. The presence of elevated 3-chlorotyrosine levels is an indicator of the effects of bleach on a person's blood. The prosecution badly needed Dr. Sochaski to testify—and the defense just as badly wanted him not to.

In defending the witness testimony, Herrington told the judge about Mr. Garlin Kelley, who had entered the clinic on the morning of April 16, 2008, in good spirits. He was doing fine, and then five minutes later, he was unconscious. He died a few months later without regaining consciousness. Herrington went on to say that Mr. Kelley had very elevated levels of 3-chlorotyrosine, a marker for bleach poisoning in his blood.

Thomas Deaton argued to the court that Mr. Kelley's 3-chlorotyrosine level was due to a “massive infection.”

Judge Bryan, an intensely intelligent man, looked at Deaton Sr. for a long moment, then read the toxicology report out loud. It stated that 3-chlorotyrosine does not occur naturally from infection. The judge asked, “Did he have a raging infection when he was transported?”

The elder Deaton's next comment drew expressions of skepticism. “I think it's pretty clear he did.”

Ryan Deaton only made matters worse when he called the study with rats bad science, and emphasized his point by saying it had never been replicated in humans.

How Judge Bryan responded to this statement with a straight face is anyone's guess, but it did take him a few moments to formulate his words. He said, “I understand that there is a lack of research with humans being injected with bleach. Wouldn't that kind of study raise some ethical questions?”

With this statement, it took everything the people in the audience had not to burst out laughing.

Needless to say, the state's expert witness was allowed to testify at the trial.

CHAPTER
15

VOIR DIRE

Monday, January 23, 2012, was a beautiful spring-like day in Lufkin. With temperatures in the sixties, a light wind, and no rain, Angelina County citizens flocked to the courthouse. Some were called to jury duty, but most of the others were there to observe the potential jurors.

Voir dire
is a French term that means “to speak truth,” although “jury selection” is a more common term. In a legal setting, the term has several meanings, and of course, jury selection is only one of those. It can also mean to examine a potential witness before testimony, or even examine evidence to determine whether or not it can be admitted to trial.

Attorneys examine prospective jurors during
voir dire
to see if they have bias against the attorney's case and can follow the law, or just to see what kind of people they are. Potential jurors who are biased or don't believe they can follow the law can be released for cause.

Each attorney can use a limited number of challenges without giving a reason. The potential jurors accepted by both sides are the ones that will hear the case.

It's a simple-sounding process, but a complex issue and vitally important to both sides. In the Saenz trial, the jury selection was even more important than usual—a person's life was on the line. The official date of the Saenz
voir dire
began on January 23, 2012, but in all actuality, it began the day she was first arrested. From that day on, nothing other than normal public information from open records came from the DA or the police department. The reason: Herrington didn't want to give out information that would compromise a jury pool. Most information reported about the case came from the defense side.

Voir
dire
was one of the reasons Herrington chose to pursue the death penalty. He said, “I have a legal right and obligation to ask for the death penalty but a death penalty
voir dire
gives me a better way of choosing a jury.”

He went on to explain his decision: “In a normal situation, all the potential jurors file into the courtroom and have a seat. The two attorneys get to talk to them as a group. The attorney will pick one out of the group and ask that person a question. Then pick another and ask another question. However, they never get to ask all of them a question or even talk to everyone. Both sides know little if anything about the potential jurors.”

With a desire to impanel an impartial jury, both attorneys and the judge could ask questions and dismiss jurors. However, the normal process is basically a crapshoot. Herrington said, “This case was too important to select jurors the normal way.”

In most cases the defense and the prosecution desire different types of jurors and the selection process is as much about getting the type of person that each side needs as anything else. In the Saenz
voir dire
, both sides wanted smart jurors, with the ability to stay focused for a long time period. The trial was expected to take four to six weeks. The case was complicated, both sides would be putting on expert witnesses in all fields of forensic science as well as dialysis experts, and the jurors had to have the ability to understand and not get lost or caught up in the medical and scientific testimony.

In the capital murder
voir dire
, a potential juror filed alone into the 217th district courtroom and was directed to the witness box next to Judge Bryan. For most of them this was the first time they'd ever been in a courtroom, and definitely the first time in the witness stand. The judge swore them in as not only the prosecution attorney and the two defense attorneys but even the defendant sat watching. In the audience were also several with pens, papers, or in some cases, computers open and ready to write down everything they said.

The citizens had first reported for jury duty up at the courthouse on a Monday morning with no clue as to what kind of jury they might get on or who the defendant was. By the time both attorneys had spoken with the group as a whole for a while, the judge had dealt with the ones claiming exemptions from service for a mélange of legal reasons, and the citizens had spent a few hours filling out that autobiography that the court called a survey, they all knew they were being interviewed as jurors on a capital murder case where they might have to decide if someone lived or died.

To add to this responsibility, and to ensure that they had been thoroughly inconvenienced, each was assigned a date to come back so they could be grilled individually by the prosecutor and the defense attorney.

Both sides of the case were given a couple of days to pore over the surveys the potential jurors had filled out about themselves.

On the defense side, Deaton, Taylor, and Saenz went over the surveys and graded them, but they went further than that. Before jury selection began, the defense had brought in some people from the Texas Defender Service, a nonprofit organization that aims “to establish a fair and just criminal system in Texas.” Deaton scanned the surveys and sent them to one of the people in the Defender Service, who graded them and sent them back. Deaton communicated back and forth with him by phone or text regarding the consultant's opinion on whether or not that juror was a good one.

On the date and time of the citizens' inquisition, they showed up and were put in a small room to await the summons to the courtroom. Sometimes the wait was long—well past their appointment time. They had an hour slotted in the schedule, but the wheels of justice are slow and seldom start on time. All they could do was wait. Of course, the longer they waited, the more nervous they became. What would the lawyers ask them? How should they answer questions? Most wanted to answer the questions truthfully, but they didn't want to sound stupid, or fumble their words and have the court misunderstand what they were trying to say.

When their time did come, the jurors entered the courtroom escorted by an armed bailiff.

As the prosecutor, Clyde Herrington started off the process. He first greeted each potential juror with an even, quiet voice that somehow seemed to relax the person on the witness stand, which indeed was his objective. In a way, Herrington was also training that juror as to how he conducted business, in jury selection and in the courtroom—professional, organized, courteous, and credible.

Herrington also put the jurors at ease by first telling them something about himself. He related how he, like them, was born and raised in East Texas. His parents worked there; his father had been an employee at Lufkin Industries for forty-two years. Several of the potential jurors also worked for Lufkin Industries, or had relatives or friends who did.

But more than that, Herrington was making a connection to all of them. This was the man whom they'd continuously reelected to the office to do the job he was going to talk to them about. However, in a show-and-tell world, he was showing them that he was like them. He grew up on a farm with a smell on his boots that most were familiar with. He had to work his way up the ladder. Nothing had been given to him. He was an East Texas country boy through and through, and few if any of the potential jurors would fault him for that.

Herrington chatted with each person on the stand for about five minutes. Some he talked to about a book they were reading or others about their favorite movie or TV show, and no matter the subject or content of the book, he seemed to know something about it. Others he spoke to about their jobs or hobbies, and most about their spouses, children, and family. He made sure that they realized that he was a normal family man like they were. Of course, he got all this from all those questions the potential jurors had to answer about themselves in that “survey.”

As the jurors relaxed, they then got to tell Herrington about themselves. And why shouldn't they talk to him? He'd given them the blueprint. With his down-home way, quiet voice, and even-keeled temperament, he was more than just the DA to the potential jurors; he was someone they knew and respected, one of them. Before Herrington began the questioning process, he explained to them that the “survey” that they'd spent hours filling out was nothing more than their opinion, and no matter what they'd answered, they couldn't be wrong. All he asked of them was to be honest.

In truth: Herrington needed all of those down-home connections and more. He faced some serious challenges in the Saenz case, and most of them had nothing to do with guilt or innocence. The first major hurdle he had to overcome was the death penalty itself. The court initially sent out 400 jury summonses, but only about 150 people who received them actually showed up for selection, and of that, at least half of them tried to use an exemption to get out of the duty. But it really wasn't necessary. If a potential juror didn't want to serve on the jury, all they would have to say was they could never under any circumstances vote for the death penalty. That would be a strike for cause.

On paper, a vast majority of Texans—men and women—are in favor of the death penalty. In fact, Texas is known for executing people. Since 1982, Virginia has executed 107 people by lethal injection. This is the second highest total in the United States. Who leads? Texas's 472 executions since 1982 are more than four times the number of Virginia's.

Those numbers should say it all, but believing in the death penalty and being the one who imposed that penalty on someone else are two different things. And like it or not, another problem reared its head: in this case, the person facing death was a woman. Although it shouldn't make a difference if she was guilty of the crimes she was accused of, it mattered that the accused was female. Texas has no problem executing men, but women are another story. Of those 472 executions in Texas, only three had been women. Karla Faye Tucker, the first woman executed in Texas since 1863, was put to death in 1998; Betty Lou Beets in 2000; and Frances Newton in 2005.

But Herrington had an ace up his sleeve—one that few people knew, even Texans. It was that Texas jurors
don't
actually vote for or against the death penalty.

The truth is that district judges in Texas are the ones who impose the penalty in capital cases. In a capital case, the judge has the ability to issue either life in prison without the possibility of parole or the death penalty if that person is convicted.

In the second phase, called the punishment phase, the jury listens to evidence from both the prosecution and defense in order to help them decide whether the convicted person would be a future danger to society.

If they vote no, the punishment phase ends there. Their answer goes to the judge, who then imposes life in prison without the possibility of parole.

If the jurors vote yes, then the jury goes on to a second question, called the mitigating question, and votes on whether the defendant had an excuse for the crime they were convicted of; for example, a mitigating reason can be anything the jurors want it to be—anything from how the defendant was raised, abuse he or she had endured in the past, or their mental capacity.

If the jury finds that the person
did
have a mitigating reason to murder the person or persons they were convicted of killing, then the judge would issue life in prison. If not, the judge issues the death penalty.

The special circumstances questions give the prosecutor some help with potential jurors who don't want to, or won't, vote for death. The DA can honestly say that the juror will not vote to impose the death penalty, which is true, because the judge is the one who does that. But of course, the smart jurors Herrington needed would also understand the consequences of their vote.

Besides the death penalty, Herrington had some other problems he needed to deal with, and of course,
voir dire
was the perfect place to prep the potential jurors for these problems. First, the biggest obstacle was the question of motive. Why did Saenz do it? Most, if not all Angelina County residents—and a good part of the world—knew that the district attorney's office didn't have a motive. Deaton told the paper several times, “[Saenz] is a married mother of two and has no motive for the crimes she is accused of committing. She has no motive to kill anyone.”

The general population believed that the DA couldn't convict Saenz without a motive. Most of the jurors didn't know until Herrington told them that in Texas (or for that matter, any state), proof of motive was not required to convict someone of murder. “Have you ever seen someone do something and think, why in the world did they do that?” Herrington asked them. Of course just about everyone has. Then he finished it. “You saw that person do it—you know they did it, but unless they tell you why, you won't know. Does that mean they aren't guilty? Of course not.”

In order to prove motive, the accused person would first have to tell why he or she did it, and most people for obvious reasons don't like to admit to murder. If the judicial system was required to prove what was inside someone's head at the time of the murder, a perfect murder would be to do it and not tell anyone why. That would be a loophole few would appreciate.