Killer Nurse (24 page)

“I think her whole life was coming apart,” he said. “She had marital and other personal problems. She was addicted to drugs, severely depressed, and hated her job.” He also said, “Talking to some of the folks who worked with her at DaVita, it sounded to me like her husband was forcing her to continue to work there. She was frustrated and took it out on the people who were helpless to her.”

Chris Tortorice, Layne Thompson, and Sergeant Abbott agreed with Herrington's assessment. However, mitigation specialist Cheryl Pettry had another theory. She believed that Saenz wanted DaVita to hire more employees and they wouldn't, so she took it upon herself to show them.

The jury also agreed with these professionals on the motive of Saenz, but they took it a step further, all on their own, in their probability study that no one else did—no one had access to the DaVita work calendar because Herrington didn't present it in trial, just placed it into evidence. In the twenty-eight days of April that DaVita employed Saenz, she worked twelve of those days. There were ten events on six days—all days that Saenz worked, and she was the only one to work all those days.

If a person closely took a realistic look at Kimberly Clark Saenz's life, put certain events from her personal life down on paper, and then overlaid that with the DaVita patients' deaths or injuries in April 2008, the ones Herrington charged her with, the correlation would be frightening and illuminating.

For instance, on February 15, 2008, Capital One Bank had filed a civil suit against Kimberly Saenz. The papers were delivered to her on April 14, 2008. Kimberly Saenz did not work on April 15, but she did on April 16, and that was the day Mr. Kelley coded, went into a coma, and eventually died. However, it was also the day Ms. Castaneda coded while on the dialysis machines.

Another example would be the day leading up to April 26. Friends and some family members say that just prior to this date, Kimberly and Kevin had a huge fight that ultimately led to him filing for divorce. The next day, the twenty-sixth, Kimberly Saenz worked. On that day she encountered Ms. Debra Oates, Ms. Cora Bryant, and Ms. Opal Few. Two of these patients died, and the other, Ms. Oates, came close.

There is some validity in what the friends and family members say because on April 29, the day DaVita fired Kimberly Saenz, Detective Mike Shurley met with Kevin Saenz in his attorney's office, where he was in the process of filing for divorce.

This also doesn't account for April 28, 2008. That was the day that the two witnesses observed Saenz injecting Ms. Risinger and Ms. Rhone with bleach. No one who ever looked at those two accusations in detail doubted what those two women saw. Everything they told Amy Clinton and the police proved true, and was backed up with science.

However, sometimes people lose sight of what had happened before Saenz injected the two patients. That morning she was scheduled to be the med nurse—a job she loved, but was switched from the duty back to patient care—something she hated. She was so upset by the switch in duty that Amy Clinton had to coax her into going back to work.

Just thinking of how many people could have died on April 28, 2008, or the days after, if these two patients hadn't seen her, or told anyone what they'd seen, is chilling.

Looking at this, it is easy to conclude that Saenz was indeed taking her frustrations out on people who were powerless to do anything about it—people who trusted her to care for them.

However, to take it a step further, there's also the specific people whom Saenz actually killed or injured to take into account. It wasn't a question of race, ethnicity, or sex: Ms. Metcalf, Ms. Strange, Ms. Few, Ms. Risinger, Ms. Bradley, and Ms. Oates were white. Ms. Bryant and Ms. Rhone were black as was Mr. Kelley, the only male, and Ms. Castaneda was Hispanic.

As stated earlier, for the most part, dialysis patients are sick, old, cranky, and difficult to deal with. But not Ms. Opal Few or Mr. Garlin Kelley Jr. Not a single employee had a bad word about either of those two—they were two of the most beloved patients at DaVita. Both had buoyant, warm personalities and made it a point to do things on their own so they wouldn't be a burden to others.

Employees of DaVita, past and at the time of trial, went out of their way to say good things about these two patients. Even the other patients had good things to say about these two.

Ms. Cora Bryant and Ms. Clara Strange had also been well thought of, and while Ms. Thelma Metcalf had been harder to care for than the others, because she had to be lifted in and out of her wheelchair and, in some cases, gurney, no one had a word to say against her.

When Ms. Debra Oates took the stand to testify, she'd looked at Saenz and said, “Hi, Kim.” She'd considered Saenz a friend. She told people that Kimberly Saenz had helped her pass the long dreary hours by telling her jokes while she was hooked up to the machine.

Although Ms. Risinger didn't live to see the trial, her husband, Jim Risinger, swore that his wife told him that Kim didn't do anything to her. She even credited Kim with saving her life once. Jim Risinger believed this so much that he testified at trial for Kimberly Saenz twice and even went on the E! Program to declare her innocence.

Obviously these were not difficult patients or even contrary to Saenz.

However, like all dialysis centers that treat older, extremely sick patients, DaVita Lufkin, according to employees past and present, did have quite a few difficult, hard to get along with, patients. As it happens, Saenz did not harm any that exhibited frustration or anger like she had. It's obvious to see that Saenz was taking her personal problem out on the patients—but not the ones who were weak or unhappy or unkind. It was as if she'd targeted the ones who
weren't
as miserable as she was.

Another huge question on people's minds before and after the Saenz trial was why the defense didn't ask for a change of venue from Angelina County.

This was a question broached to Steve Taylor, the experienced defense attorney and the death penalty specialist for the Saenz defense. In answer, he said that a change of venue was a lot harder to obtain than most people think. First, the defense would have to find three people from Angelina County—three who had nothing to do with the case or the defendant—who would swear in an affidavit that the defendant couldn't receive a fair trial in the county.

Then the prosecution would submit three affidavits from three unbiased people that the defendant could receive a fair trial. For the most part, this is usually easier for the prosecutor then the defense.

If all the affidavits are presented, the judge usually says, “Let's wait and see what the prospective jurors say. Wait for
voir dire
.”

The judge will base his decision on whether the potential jurors can be objective—something all potential jurors are asked anyway.

Taylor said that one of the hardest parts of the process for the defense is to show the judge that the jury has been poisoned—something both Herrington and the police department had gone out of their way not to do.

Also, Taylor said to transfer a case to an adjacent county in the same jurisdiction or other nearby county is expensive—something that is taken into account.

However, when looking into a change of venue for this case, there were some major differences in this one and others, and a little had to do with that expense Taylor talked about. In most cases, to change to another county, there are either transfer costs of taking the prisoner back and forth for trial, or for another jurisdiction to house and transfer the prisoner.

The difference: in this case there was no prisoner to transport. Unlike most murder suspects, especially ones suspected and charged with serial killings, Saenz was free on bail. However, as a stipulation to that bail, she was not allowed to leave the county. She had a GPS ankle bracelet on to ensure that she didn't. A change of venue would mean the judge either had to revise the bail set or allow Saenz free movement, something Herrington was sure to fight, or revoke it, which Saenz most likely wouldn't have liked.

Of course, this brings in another factor that may or may not have played a part in this decision. Saenz was out of jail on an attorney bond. This is a practice accepted in Texas, but most if not all other states won't allow it, and the American Bar Association is totally against it. In this case, if Saenz decided to skip, then Deaton would be the one liable for paying the entire bond that guaranteed her release from jail.

Of course there are other factors. If the case had been moved out of Lufkin and East Texas, then Deaton could not have played the sympathy card he did in closing about the huge Fortune 500 company taking this East Texas girl out of her home.

That card didn't work with an East Texas jury, but it sure wouldn't have worked if the trial had not been held in East Texas.

CHAPTER
24

THE POSTSCRIPT

Not everyone believed the jury got the verdict right. Brian Thigpen, one of Kimberly Clark Saenz's relatives, said simply, “She is not guilty and the courts got it wrong.”

Several from the Saenz camp said that Kimberly Saenz was a good Christian woman who wouldn't have done what she was accused of doing.

Saenz's close family had sat through the entire trial and heard all the evidence, but barring a confession, they would never believe what they'd heard, and they heard only what they wanted to believe.

However, the judge, and the prosecution team all believed the jury had done a fantastic job from start to finish.

Would the prosecution have said the jury did a great job if the jury had found Saenz innocent? There's reason to believe that they would. The three prosecutors were the type of people who would have said, “It was my job to prove the case and I didn't do it well enough.”

Defense attorney Steve Taylor said of the DA, “Herrington wanted the same thing I did—a fair and impartial jury, and he was satisfied when the twelfth was chosen. In my heart I was satisfied that they wouldn't kill her, and it would have been so easy for them to have done so.”

Even
The
Lufkin News
complimented the jury. In their “Toast and Roast” section after the trial, they commented, “A toast, first and foremost, to the 12 jurors and three alternates who heard every minute of evidence. It is hard enough for anyone to pay attention to a preacher's entire lesson on Sunday morning, but it was obvious that this group was going to listen to every witness' every word, as if someone's life depended on it—because it did.”

They went on to say, “Attorneys from both sides did a good job of selecting what we thought was a fair representation of Saenz's peers.”

As the spectators watched the jurors over the course of the trial, it became clear that the jury was extremely cohesive. Several people made comments during the trial that they didn't know what verdict the jury would come back with, but they would come back with one. That group would not be hung. They simply got along too well.

A month after the trial, ten of the jurors came together as a group to talk about the Saenz trial. The other two were out of town. To a person, they were proud that they'd served on the jury, and every one of them was equally convinced they'd come to the right decisions. They were also unanimous in their beliefs about the key players in the trial and the witnesses.

The jury had paid attention to what was going on during the trial. They watched everybody, especially the attorneys. They saw the professional demeanor from the three prosecutors and compared them to a defense attorney who sat in the courtroom and ate candy bars or spit his dip into a cup during trial.

The entire group agreed that the prosecution team of Herrington, Tortorice, and Thompson had done a great job throughout the trial. One juror said, and the others all agreed, “We were impressed with their professionalism and organization, their demeanor throughout the trial.” There were never any issues with their credibility either.

They also paid special note to how well the prosecution team had worked together.

Larry Walker said, “Clyde Herrington is great but he knows his limitations and that scientific stuff—he turned it over to Chris Tortorice,” who had also impressed Walker. “I thought the world of him,” the foreman said of the young lawyer.

Their reaction would not be the same for the defense. As far as credibility went, Deaton's was less than zero with most of the jurors. They believed that he continuously attempted to deceive them. He didn't give them facts, he attempted to hide the facts from them, and he wasn't that good at it.

After the trial was over, the prosecution team met with the jurors. During that conversation, Kimberly Flores said she asked, “Being new to the judicial system, the other side that we saw, is that how a defense attorney is supposed to behave?”

She said that the prosecution team's answer was no, but it was a question many of the jurors wanted answered.

Kristene Bailey said simply, “The whole defense in my opinion was a joke.” She was the first alternate and didn't get a vote on guilt or innocence, life or death, but she wasn't the only one who'd felt that way. “I'll be completely honest,” Bailey said of Deaton, “as soon as he opened his mouth and said DaVita was a puppet master—that got objected to and it should have—that put me off right from the beginning.”

In other words, from the moment Deaton opened his mouth at the trial, he began to lose jurors.

Most of the jurors thought Deaton treated them, as David Bradford said, “like dumbasses.”

In their opinion, Deaton had been rude and disrespectful to the witnesses, to the court, and yes, to the jury, too.

But Deaton wasn't the only one they watched, and the jurors had also been appalled at Kimberly Clark Saenz's behavior. The smiling and laughing wasn't something that just went on before or after the trial. It took place while the trial was in progress in front of the jury.

As a matter of fact, Saenz often leaned close to Deaton and whispered, or passed little smiles back and forth—not what people expected in a trial where someone was accused of murdering five people and faced the death penalty.

As the trial progressed, this became one of the most talked-about topics by spectators in the hallways, how much Saenz appeared to enjoy the process all the way from the pretrial hearings to the trial, and the jurors were amazed at how she was walking around intermingling with everyone—just having a good old time.

Another element of the Deaton and Saenz dynamic that surprised the jurors was how poorly Saenz and Deaton treated Steve Taylor, the experienced attorney and death penalty specialist. Taylor sat way to the left and away from Saenz and Deaton, while Saenz appeared to be the one assisting Deaton, handing him things he needed, whispering, or passing him notes. It got to the point that people wondered: was this nurse who hadn't graduated from high school and possessed two years of junior college credits actually telling her defense attorney what questions to ask?

As one of the jurors also said, “Her carrying on with Ryan [Deaton], rubbing against him, bothered us. This went on in the courtroom and it didn't seem appropriate.”

However, the jury's big question was: how could the defense attorney let his client act this way in a trial for her life?

Juror David Bradford said, “One of the things that impressed everyone, too, when they said Opal Few coded and she was on break out there, the employee ran out to her and says you need to get back in and she said, ‘I'm finishing my break—I'm finishing my cigarette.'”

Bradford said, “When you heard that, you just went, I mean you know her mind-set because I don't care how frustrated you were, if you had any concerns you wouldn't have done that.”

This was huge to the jury. Kimberly Flores said, “I wrote this in my notes. I know it doesn't make her guilty but what kind of health provider wants to finish her cigarette before helping a patient who's coding?”

Along these lines, she said, “That's like a kid dying in the hallway of my school and I won't go out and help him until I finish assigning homework.”

The jurors also weighed in with their opinions on some of the witnesses. The ones who impressed them the most were Amy Clinton for the prosecution, and Candace Lackey for the defense. In regards to Lackey, several of the jurors said, “She was called by the defense but she wanted to tell the truth.” They'd felt sorry for her. She had been shaking during her testimony, her foot was tapping. Several put it in their notes—“she is telling the truth.”

Another defense witness who impressed the jury was nephrologist Dr. Michael Germain from Massachusetts. Bradford said, “He by far was the best, most polished witness to me. What I really liked about him was he seemed honest. At the end when Clyde [Herrington] said, ‘Can you say that all these things could not have been caused by the bleach injections,' and he said no.”

The witnesses the jurors had liked the most, no matter which side called them, were the ones they perceived as honest. The jurors didn't perceive Dr. Gruszecki as dishonest, but thought she was mistaken quite a bit. Larry Walker said, “Her opinion came right before the trial, and it seemed like she was not very familiar with all the witness statements or the FDA report, and she didn't review the victims' records thoroughly. Tortorice seemed to know more about 3-chlorotyrosine and the sciences than she did.”

Even after the trial was over, the jury had trouble getting away from Deaton. One of the first was Walker, the foreman of the jury. Walker said, “Deaton called me and we got in an argument after he accused me of strong-arming the other jurors.” Walker said he told him, “I didn't railroad anyone. You need to talk to them.” He gave Deaton the names of the jurors who'd originally voted not guilty or who'd been on the fence.

Larry said as soon as he'd given Deaton the names, he felt awful, as if he'd betrayed them.

Deaton or his investigator did contact those jurors, including Gail Brasuell. She said that when Deaton's private investigator came to her house on Friday afternoon, she invited him in and they talked for about an hour, and he said something to the effect that he'd heard that the foreman had strong-armed her. She told him that wasn't true, and echoed what everyone else said: Larry was a great foreman.

Deaton or his investigator tried to talk to every one of the jurors who'd been undecided, even one who had told Deaton on the phone that she didn't want to talk. Despite that, Deaton's investigator showed up at her front door. She said he tried to get her to look at a bunch of papers. He asked her if she'd have known about what the papers said, would it have made any difference. She told him that she was through with that trial and didn't want to look at anything.

The jurors whom the defense contacted said they were never asked why they thought Saenz was guilty, what the defense could have done better, or why the other jurors had changed their minds about Saenz's guilt. Several of the jurors believed that Deaton's purpose was just to get the others to say Walker made them vote the way they did so he could get a reversal of the decision.

Gail Brasuell said no emphatically to the strong-arming. “[Walker] was excellent. He said my job is to make sure everybody speaks even those who are very quiet. Those who speak too much need to not speak as much.”

Bradford said, “One of the things that Larry did good, when someone didn't know something, the approach that he took was, he'd say, ‘Okay, explain to me the part that you are unsettled with. Give me the parts that really bother you,' and those were the parts that they delved into and tried to dig up the evidence to see where it would go and we didn't stop until everybody had every point that bothered them settled.”

The jurors also credited Walker's organizational skills. They had gone around the table, talking about what they wanted to go over, and Larry made an agenda. Before they left that first day, he set the agenda for what they needed to discuss the next day.

One of the jurors commented, “Instead of Deaton trying to accuse Larry of strong-arming us, he should be asking him about how he was so organized.”