Killer Nurse (18 page)

Now, Mr. Platek testified with absolute certainty that the puncture wound in Ms. Few's line had been made by a 3ml syringe—the one that had Ms. Few's name on it.

Then on day ten of the trial, the mysterious computer searches were finally addressed. Mario Mares, a forensic computer specialist for the Office of the Inspector General, was scheduled to testify. But right before Mares was to take the stand, Deaton surprised the court. Though he'd had three years to prepare his defense, Deaton made a motion to suppress evidence found on the computers because of the search warrant.

In most trials, this is something done in pretrial hearings—not the last second before an expert witness testifies.

After the trial was over, when asked about this motion, Taylor said, “Who knows. Maybe he just woke up and thought he had to object to it.”

After a break for the judge to examine the search warrants, the objection was overruled, the trial resumed, and Mares took the stand.

Mares explained the process he went through to search a computer, and informed the court how data deleted from a computer never really leaves it. It can be found using software on the unallocated portions of the hard drive.

Another aspect of what Mares did was look through all the files and attempt to identify all users on Saenz's parents' computer. On that one, he found Kimberly Saenz's 2007 H&R Block tax return with her name, date of birth, and social security number. Along with that, he also found e-mails with her name on them. Both activities led him to believe that Saenz was one of the users on that computer.

Before Mares began his search, he received key words from the police to look for. In this case, he didn't know that it was Kimberly Clark Saenz's own husband, Kevin Saenz, who'd given the police those key words.

At 4:14 in the morning of April 2, 2008, Mares found that someone did a Yahoo! search on the computer for bleach poisoning. The date was significant. It was the morning after Ms. Strange and Ms. Metcalf had coded and died. It was their deaths that prompted DaVita to investigate their own facility. However, this search also flew into the face of Saenz's statement to the police that she thought the problem was with blood pressure, and she'd never searched the computer for the cause, a claim she later did a one-eighty on when she testified in front of the grand jury. The time also seemed significant: Kim Saenz was regularly up at this hour in order to get ready for work.

When Mares finished his testimony, the court broke for lunch, but an air of anticipation buzzed through the courtroom. Everyone had already got a glimpse of the next witness sitting in the front row ready to testify.

* * *

Dr. Michael Schwartz was the medical officer for the Centers for Disease Control. The CDC is a part of the national government—a part of the United States Public Health Service Commissioned Corps (PHSCC), to be exact. Because the PHSCC is one of the seven uniformed services that includes the Army, Navy, and Air Force, the officers must hold a military rank. Although the Surgeon General holds an Army rank, the others hold Navy ranks. Schwartz, who held the rank of naval commander, was tall, handsome, and solidly built. He made an imposing sight as he came into the courtroom dressed in his naval uniform, and marched up to the witness stand. His military bearing gave him credit in this part of the country before a word was even uttered.

However, this was a man who didn't need any help with credits. He was a graduate of Cornell University, and from there had gone to Oxford Medical School in England, and then back to Cornell for his Ph.D. A two-year fellowship at Emory in medical toxicology followed, where he did significant work on antifreeze poisoning in dogs. He now trained toxicology students at Emory University, and volunteered on the weekends for ER shifts at the Atlanta hospitals.

In fact, Schwartz's list of credentials was a lot longer—so long it brought on an objection from Deaton when Tortorice was halfway through reading them. However, the judge let Tortorice keep listing them. People's estimation of Schwartz grew with each successive accomplishment.

Because Dr. Schwartz was a medical doctor as well as a board-certified forensic toxicologist, he was perhaps the best person in the country to examine all the evidence the state had and render an opinion.

Unlike some of the other experts, Dr. Schwartz hadn't merely spent just a couple of weeks with the case and evidence. He'd spent a couple of years. In fact, he spent one entire month doing nothing but reading all the literature available on bleach poisoning.

Deaton tried to discredit him, trip him up, or make him look wrong, but it was a fool's mission. Dr. Schwartz's military bearing wasn't just surface image. The man was a consummate professional.

When Dr. Schwartz left the stand, Taylor, who had a son in the Navy, approached the man to apologize. Taylor believed Deaton had been rude and disrespectful during his testimony. Dr. Schwartz told Taylor he hadn't taken offense, that he understood the stakes.

But it seemed to be a big deal to Deaton's mother. Taylor said, “She climbed all over my butt. ‘How—what are you doing—don't apologize, you're supposed to be a part of our team!'”

However, to Taylor it was a matter of respect no matter what side the person was on. Just because an expert's testimony went against his client didn't make the person a mortal enemy. Taylor believed that respect can be given to a person's deeds without total reliance on his words.

Although Dr. Schwartz wasn't Taylor's enemy, his last words were devastating to the defense's case. He made it clear that, in his medical opinion, the victims had all died or been injured as a result of injections of sodium hypochlorite—bleach—into the dialysis lines or bloodstream. The jury left with those last words ringing inside their heads.

In order to convict someone of murder, the prosecution had to prove that the victim was actually murdered. In most murder cases, this was easy and seldom challenged by the defense in court. But because the alleged weapon, bleach, was so difficult to detect in the bloodstream, the Saenz prosecution was especially difficult. If the jury believed Dr. Schwartz, however, Herrington had just proven a major part of the case.

CHAPTER
19

TROUBLED WATERS

At nine in the morning of March 19, 2012, the Kimberly Clark Saenz trial began its third week and most expected the state to rest. If so, the people who followed the trial would finally get to see just why the defense were so sure of themselves.

As the trial wore on and the evidence began to pile up, Saenz's frequent laughter and smiles, and her seeming imperviousness to the gravity of the charges against her, grated on the victims' family members' nerves. Even worse, they felt, was Saenz's habit of turning slightly and looking back at the victims' families. Several of the family members said that she turned and smiled at them or had a smirk on her face—as one family member said, it looked like “she really thought she was going to get away with it.”

Once prosecutor Clyde Herrington rested his case, defense attorney Ryan Deaton made a motion for the judge to dismiss the case because the state hadn't proven his client was guilty. It was a normal defense tactic, but Judge Bryan dismissed the motion. No way would Saenz get off that easy.

As the defense began, Saenz's supporters, mostly from her church, showed up in court en masse. From their smiles and cheerful attitudes, it was clear that the Saenz camp believed Deaton was about to destroy Herrington's case.

However, as Deaton had done from the moment he became Saenz's attorney, he either overestimated himself or underestimated the prosecution team. Now the prosecutors had some surprises in store for Deaton. They'd objected numerous times during Deaton's cross of state witnesses—mostly for misrepresenting facts—but the defense attorney hadn't seen anything yet. Attorneys who are cross-examining witnesses as Deaton had as the prosecution put on their case can do so with leading questions, but not when conducting direct examination. Before, the state was putting on its witnesses and the defense cross-examined. However, now the defense would be putting on the witnesses and would have to ask nonleading questions.

At one point, Herrington rose from his seat and objected to one of Deaton's leading questions. When the judge sustained the objection, Herrington didn't even sit down. Instead he remained standing, waiting on the next question so he could object to that, too. Which he did, and the judge had no choice but to sustain the second objection, too.

Deaton's first witness was Jim Risinger, husband of Carolyn Risinger, one of the alleged victims whom Ms. Hall and Ms. Hamilton had witnessed Saenz inject with bleach. Unfortunately, Ms. Risinger had been killed in an automobile accident, so she wasn't there to speak for herself. Jim Risinger wanted to tell the jury that his wife had told him that Saenz hadn't done anything to her. But Herrington was ready for that—even novices to the courtroom know that hearsay isn't allowed in a trial. Why Deaton thought he could slip that by was anyone's guess.

Mr. Risinger's testimony did nothing to help the defense, but as it turned out, Herrington had a few questions for him. Under Herrington's questioning, Risinger went on to testify that he'd never seen the techs mix the bleach at the machines, that they always did that before the patients arrived, which contradicted what Saenz had said and reinforced what every other DaVita employee had testified to.

After Risinger, Deaton called Gail Owens to the stand. Ms. Owens was an LVN for eighteen years, but had been a dialysis patient since 2002. Deaton asked Ms. Owens if she'd ever seen Saenz do anything wrong, and she responded that she hadn't. But after several similar questions, she said something that left people shaking or scratching their heads:

The witness told Deaton that she was legally blind.

Deaton did better with Kenny Graham, another DaVita patient, although Mr. Graham admitted that he had tunnel vision without being able to see anything in his peripherals. At least Deaton had known this. Graham also claimed that he was Carolyn Risinger's friend, and had had his head turned in her direction the entire time she was undergoing treatment and he never saw anyone do anything to her.

Deaton next called Giselle Frenette, one of the monitors who came to DaVita with Amy Clinton in April. She was the employee who'd assisted Clinton in opening the two sharps containers and testing the syringes when bleach was found. Frenette turned into a really strong witness—for the prosecution.

Deaton ended with his sarcastic “You work for DaVita, don't you?” question. This was a question he reserved just for the employees who still worked for DaVita and didn't answer the questions the way he wanted them to, but this was his own witness. He even asked her, “You were told how to testify, weren't you?” She responded that she was: she was told to tell the truth.

On day thirteen of the trial, the jury spent most of the day out of the courtroom, and then the judge sent them home early. A witness by the name of Catherine Denese Pickens had come forward to claim that another DaVita employee could have killed the patients. Since Pickens wasn't on the witness list, they
voir dired
her testimony on the stand without the jury present.

Pickens, who was no stranger to the courtroom (she'd been arrested on several occasions for possession of a controlled substance), told a story that involved a love triangle between herself, her husband, and Sharon Smith, the DaVita RN whose testimony was so damaging to the defense. Pickens claimed that Smith had been having an affair with her husband, and alleged that after the affair ended, Smith had threatened the couple with a knife.

Pickens went on to claim that she'd also received an anonymous package containing a 10cc syringe loaded with a mysterious clear liquid and a letter that said something to the effect of “Bang. Get your high on.” Pickens said that instinct dictated she hold on to the syringe, but after a couple of months, she threw it away.

This brought on a debate between opposing attorneys on whether the testimony should be allowed in court. Deaton opened by calling Sharon Smith “aggressive and violent” and saying, “If there is anybody here that is a killer, I would have to say that is her.”

Herrington quickly shot back that Pickens's story was “nothing more than a love triangle with no bearing on this case. Nothing but anonymous innuendos connected with a boyfriend/girlfriend situation. It's irrelevant and prejudicial.”

Why Deaton thought he'd be able to use Pickens's testimony is unclear. First, witnesses can't testify about things that aren't in evidence. The alleged letter and the syringe with that mysterious clear liquid weren't in evidence, and never would be because Pickens said she'd thrown them away. Therefore, she couldn't testify to the items' existence.

The other issue with Pickens's testimony that Deaton evidently hadn't considered was raised by Judge Bryan when he asked, “Are you accepting the fact that people at DaVita were killed by syringes filled with bleach?”

That was definitely a slippery slope. If the judge let that testimony in, which he wasn't about to do, Deaton was virtually admitting that the patients had died from injections of bleach. However, no one had ever come forward and said Sharon Smith was injecting patients with bleach. That was reserved only for Deaton's client.

Obviously the judge's question had merit. Just as obvious, the jury never heard this testimony. What it turned out to be was a waste of time. In any event, Smith later disputed some of Pickens's story.

While the jury was gone, Deaton had one more witness he wanted to put on the stand—for the record in case there was an appeal, but not for the jury to hear. It was Kevin Saenz.

In his opening statement, Deaton had promised the jury that Kevin Saenz would testify to disprove the theory that it was his wife Kimberly who'd done those computer searches. But Deaton could not put Kevin Saenz in the witness box in front of a jury. That alone would have been enough to prove ineffective counsel, and it would have doomed Kimberly Saenz. Tortorice was licking his chops waiting on this one.

After all, it was Kevin Saenz who had led the police to that computer in the first place. It was he who had given the police the key words the forensic computer specialist used to find the information searched for on the computer.

At the time he was cooperating with police, Saenz had filed for divorce, had a restraining order in place against his wife, and had every intention of retaining custody of their daughter. However, if anyone was going to defend Kimberly Saenz, that divorce had to disappear. After all, the Constitution clearly states that a spouse cannot be compelled to testify against the other spouse. As Saenz's husband, he could not be made to testify by the prosecution. Obviously, Deaton didn't think his testimony would help her. With Saenz testifying for the record but out of the presence of the jury, the defense could control what the prosecution could ask him.

As the ex-husband, Kevin Saenz could and would have been subpoenaed by Herrington to testify. There would be no way that he could get out of his sworn testimony for the protective order that declared Kimberly Saenz to be addicted to drugs and violent at times. He'd also sworn in that affidavit that he thought she was a danger to their daughter.

The prosecution could force him to testify to the reason he told others that he thought Kimberly Saenz had injured the patients. The only way any attorney had to prevent this testimony would be to stop the divorce.

Also, forensic computer expert Mario Mares had given the prosecution a detailed report on what he'd done to examine the computer and everything he'd found. With Judge Bryan's approval, the prosecution had given Deaton a summary of that report. Had Deaton elected to put Kevin Saenz on the stand in front of the jury, the prosecution knew, based on search histories, that they could prove it was actually Kimberly Saenz doing those searches and not Kevin, her parents, or her children.

The prosecution even had Robert Flournoy listed as a witness. Flournoy was Kevin Saenz's attorney and the one who'd called the police on Kevin Saenz's behalf. He had also been present when Kevin Saenz had first talked with Corporal Mike Shurley.

The jury didn't hear the testimony of Catherine Denese Pickens or Kevin Saenz, and if they had, more than likely the testimony of these two would have helped the prosecution more than hurt it. However, the jury did hear from an expert witness for the defense—one that they would not forget. He was a nephrologist from Boston, Massachusetts, by the name of Dr. Michael Germain.

Sixty-year-old Dr. Germain was short and stocky with brown hair styled professionally, as were his clothes. But his appearance and professionalism had more to do with his bearing and speech, than his clothes.

On the stand he seemed to understand the gravity of the situation and presented himself as a consummate professional in every way. Which his credentials backed up. After graduating from the University of Calgary Faculty of Medicine in 1976, Dr. Germain became board certified in internal medicine as well as nephrology. At the time of his testimony, he had thirty-six years experience as a kidney doctor and had authored over twelve articles in professional medical journals. He'd also been named as one of America's leading experts on kidney disease.

Besides his affiliation with a dozen hospitals, he was also the medical administrator of a dialysis clinic, and the perfect person to speak about dialysis. He was critical of how Dr. Nazeer, the medical administrator, and DaVita handled the situation on April 28, 2008. That was the morning that Ms. Hall and Ms. Hamilton had allegedly witnessed Kimberly Saenz inject two patients with bleach.

His criticism came about the handling of the two injected patients—one that was controversial. Both Ms. Rhone and Ms. Risinger, the two patients allegedly injected by Saenz, had adverse medical occurrences while at DaVita. Both were at the end of their treatment and both got over their problems quickly. At the time of the incident, Dr. Nazeer had not been present at DaVita. He returned when the staff called him and told him that Ms. Risinger was having a problem.

When Dr. Nazeer returned, Amy Clinton informed him of the allegation against Saenz and the fact that she'd sent the nurse home for the day. At that moment, all they had was the allegation of the two witnesses. Amy Clinton had not opened the sharps containers then or tested the syringes.

Dr. Nazeer advised both patients, Ms. Risinger and Ms. Rhone, that they needed to go to the hospital, get checked out, and get blood work done. At that time he didn't tell them about the allegation that Saenz had injected them with bleach. Maybe because he didn't tell them, no one will ever know, both patients refused to go to the hospital. They were feeling better.

This was the morning of April 28, and it wasn't until around four that afternoon that DaVita called the two patients and informed them that they might have been injected with bleach and needed to go to the hospital for blood work—which both patients did.

On the stand, Dr. Nazeer had testified that when he was informed of the alleged incident, he was shocked and had never heard of anything like that before. He went on to say that although he was shocked, he also felt a sense of relief. It gave them an explanation of the problems and the reason they couldn't find out what was causing the patients' deaths and injuries.