Killer Nurse (10 page)

The evidence began to pile up, but the investigators still didn't have enough to convict Saenz of murder. In most cases, an autopsy of the victim helped in determining the cause of death. DaVita had given Abbott a list of patients who'd died at DaVita, but none of the patients who'd died had received autopsies. Also, he only had bloodlines and syringes for Ms. Strange, Ms. Metcalf, and Ms. Few, and he believed that all three of them had been murdered. At the time, Mr. Kelley and Ms. Bryant were still alive. But the three deaths that he had evidence on had problems with their death certificates. All three certificates listed their deaths as natural causes. At the time of their deaths, there had been no reason to think otherwise, so there was no reason to do autopsies. All the patients had been of advanced age, with health problems in addition to the renal failure that required them to take dialysis treatments.

Herrington, in an interview later, shook his head and sighed as he said, “It took us a long time—months—to understand what we were dealing with. We continued to learn for four years.”

Indeed, nothing in the Saenz case proved easy. In the meantime, they had two patients in the hospital, Mr. Kelley and Ms. Bryant, and they needed evidence from them. At minimum they thought these two would turn out to be aggravated assaults, and if they died—and the doctors weren't giving them any chance—they'd have two more murders on their hands.

CSU Christy Pate went with Sergeant Abbott to the hospital to talk to the doctors about the patients' conditions, to have blood collected, and to discuss where and how the blood needed to be preserved and shipped for testing. She was amazed when Abbott, her sergeant, who had no prior medical knowledge or experience, began talking with the doctors in a medical language she didn't understand. It was obvious to her, and to the doctors, that Sergeant Abbott knew as much about this as they did.

Once they left the hospital, Pate couldn't hold back any longer. She asked Abbott where and when he'd learned all the medical stuff. His simple answer was one that epitomized Sergeant Abbott. “I've been studying.”

After the trial ended, other LPD officers said that medical experts on the subject of bleach and its effects on people and blood called to consult Sergeant Abbott about it—not each other.

Sergeant Abbott endeavored to keep an open mind as the case began. However, the longer he investigated, the more the evidence began to pile up, and the evidence kept bringing him back to Saenz.

With enough evidence in place, the investigators were finally able to make an arrest. Sergeant Abbott arrested Kim Saenz on May 30, 2008, for two counts of aggravated assault with a deadly weapon, for allegedly injecting Ms. Risinger and Ms. Rhone with bleach. These were the two patients that both witnesses had claimed Saenz injected.

Instead of having a lawyer appointed, Saenz and her family decided to hire an attorney, Scott Tatum of Lufkin's Tatum & Tatum law office. Quite a few people in and around the courthouse said that Scott Tatum was a darn good attorney. He was intelligent, knowledgeable, direct, and a veteran of many court battles.

Tatum handled the depositions from Ms. Hall and Ms. Hamilton, the two witnesses who claimed to have seen Saenz inject bleach into the patients, and he posted her bond—a $50,000 attorney bond on each count, for a total of $100,000. Saenz was released from jail on June 2. One of the stipulations of the bond was that she would not work in any way in or around a medical facility.

As the news of Saenz's arrest and the allegations began sweeping the country and parts of the world, the mood inside Herrington's office wasn't one of celebration. He and Sergeant Abbott thought they had a serial killer on their hands, and they were earnestly hoping for a confession. That was the real reason they had carried out the arrest when they did. Unfortunately, none was forthcoming. Kim Saenz had an attorney, and they couldn't even talk to her.

CHAPTER
11

A CALL FOR HELP

Clyde Herrington's unthreatening appearance, along with his soft-spoken, slow speech pattern and the friendliness of his bearing and gestures, gave him the look of an old country attorney from Central Casting. But while his even temperament and affable nature might conjure up the image of a bumbling bumpkin, the truth was far different. In fact, Clyde Herrington was an intelligent, shrewd, and wily veteran of the courtroom.

Herrington had a deep dedication to community welfare—especially when it came to the victims of crime. Most people who came into contact with him knew instantly that Herrington actually cared. And he was ethical—he never wanted to stand in front of a jury and ask them to do something he wouldn't do if he were in their place. One of his biggest fears was to discover he'd put an innocent person in prison.

In his own words: “People sometimes think a trial is not about the evidence but who is the best attorney. When that happens, guilty people either go free or innocent ones go to prison.” According to Herrington, “A prosecutor's job is not to convict but to see justice is done.” As he says, “The purpose of a trial is to find the truth.”

Herrington grew up blue-collar in Angelina County. His grandfather worked at Lufkin Industries and his father followed suit for forty-two years. His mother worked at JC Penney. There were no silver spoons awaiting him at birth; like many East Texas boys, he was expected to work and do the chores.

As he grew up, tending farm animals had an effect on him that lasted all his life. Unlike his grandfather and father, he didn't want to work at Lufkin Industries—he wanted to be a veterinarian. In high school he participated in the Key Club and the Kiwanis Community Service Club, and spent four years in FFA, Future Farmers of America.

After high school, Herrington attended two years at Angelina Community College in Lufkin, and then traveled twenty miles north of Lufkin to attend Stephen F. Austin State University in Nacogdoches. There he took a slight turn from his veterinary dream. Although he majored in agricultural science, he minored in education with a plan to obtain a teacher's certificate to teach agriculture in school.

Although he did, in fact, obtain a Texas teacher's certificate, his path diverged even further. An uncle of his, who was a professor at Baylor University in Waco, Texas, convinced him to apply to law school. In an interview after the trial, Herrington said that, growing up, he'd never thought about becoming an attorney. With his uncle's encouragement, he said why not, and applied to the Baylor Law School. He was actually doing his student teaching in agriculture at Hudson High School, just west of Lufkin, when he was accepted.

After earning his law degree from Baylor in 1981, Herrington returned to Lufkin to settle down. He went to work for a local defense attorney and remained at the firm for three years. Defense wasn't for him, though—he didn't like it when the court appointed him to represent bad people. In 1983, then–district attorney Gerald Goodwin, who'd had his eye on Herrington since he'd graduated from law school, hired him to work for Angelina County as an assistant.

In 1990, Goodwin stepped down as district attorney in order to run for election as a district judge in the county. In doing so, he left an unexpired term, and Texas Governor Bill Clements appointed Clyde Herrington to serve out the remaining time as the district attorney of Angelina County until the next elections were held.

When the time came for the DA elections, however, Herrington ran unopposed. As it turned out, this wouldn't be an unusual occurrence. Herrington ran for DA five times and never once had an opponent in the general election. When he finally left the DA's office on December 31, 2012, it was because he retired, not because he'd ever lost.

Never in his law career had Herrington ever been involved in a case remotely like that of Kimberly Clark Saenz. In an interview after the trial, he said, “I really don't think prosecutors should avoid cases because it's tough, and I knew from the moment Abbott had first walked into my office that this one would be the hardest of my career.”

Unfortunately for Herrington, Saenz's arrest and charge didn't lead to the confession he'd hoped for. He felt secure that he could convict Saenz on the two assaults, but he also believed she'd murdered patients, and he wasn't going to stop until he could find the truth.

Although he'd finally found the two government agencies that were testing the evidence, the FDA and the CDC, Herrington was dismayed to realize that both agencies were exempt from processes—meaning they couldn't be subpoenaed to testify in court. And if he couldn't get them to testify to the results of the tests, no matter what those results might be, that would put the investigation back to day one.

So Herrington called on an old friend—Malcolm Bales, the U.S. Attorney for the Eastern District of Texas—reasoning that if the U.S. Attorney's office, also a federal agency, was involved, it might help smooth the way to get the other agencies to testify. Herrington even knew of an assistant U.S. Attorney who worked in the East Texas area who wanted to be a part of the case. He just didn't know if he could get him. As it turned out, he'd get lucky on several fronts with that phone call to his old friend. That phone call produced help in the form of a young attorney by the name of Chris Tortorice (pronounced “ta-TORres”).

Chris Tortorice was thirty years old when he became involved in the prosecution of Saenz. At a slender six feet, with glasses and short brown hair parted in the middle, Tortorice looked like a mild-mannered if well-dressed geek. In truth, he
was
mild-mannered and likable with no hint of cockiness.

Born and raised in Beaumont, Texas, Tortorice attended Catholic schools through high school, and upon graduation took off for Texas A&M, and then law school at South Texas College of Law in Houston—one of the largest private law schools in the country. In 2010,
U.S. News & World Report
ranked the South Texas School of Law third in the country in trial advocacy.

After passing the bar and being licensed as an attorney in Texas in May 2005, Tortorice first spent a couple of years in the Navarro County DA's office before becoming the Special Assistant to the Texas Attorney General. After a short stint there, he went to the U.S. Attorney's Eastern Division of Texas headquartered in Beaumont. He'd just begun there when he became involved in the Saenz prosecution—an assignment that would consume four years of his life. Tortorice was a newlywed when the assignment began, and he and his wife had settled down in Beaumont. They both wanted children, but couldn't have guessed that they would have two sons before Saenz even came to trial. To emphasize the type of person he is, Tortorice's wife tells the story of how they'd planned home births for both of their boys, but each came so fast that their midwife didn't make it in time. Chris had to deliver them both himself.

In 2008, Tortorice had prosecuted quite a few cases, ranging from child sexual assault to one where a man threatened to kill and eat the President and First Lady, but he'd never been involved in a capital murder case before. However, what Herrington got in young Chris Tortorice was an attorney who was intelligent and willing to work and put his all into the prosecution. Even more important, he got someone willing to learn what turned out to be the hardest part of the trial: the sciences involved in the case.

The third member of Clyde Herrington and Chris Tortorice's prosecution team—later referred to as “Team Justice”—was Layne Thompson. Thompson, a short, slim man with a craggy face under steel gray hair, was the type of person who looked like he was going ten miles an hour while sitting still.

Born and raised in Lufkin and East Texas, Layne Thompson had attended high school with Herrington, then lit out for the University of Texas and its law school. Graduating in 1982, he took his degree to Houston and Harris County, where he said he worked in a large law firm for twenty-two years, defending doctors, hospitals, and medical offices against malpractice charges. Thompson, like Herrington and Tortorice, was a humble, intelligent man who got along well with everyone. In fact, in his humbleness, he neglected to mention that he not only had worked for that huge law firm in Houston, but had been a partner.

However, Thompson eventually tired of civil litigation. He said he'd had the idealistic belief that he would be a part of changing the world when he went to law school. But he wasn't changing anything in civil litigation. His thoughts turned to prosecution and to the Harris County DA's office. One thing Houston has is crime, after all, and it needs a lot of people to help change its world.

Thompson thought he could do this in a small way, one case at a time, one defendant at a time, and thus began a new stage in his career—criminal prosecution. It was a step down in salary, for sure, but people around Layne Thompson said that money had little bearing on what he did.

When he made the switch to the prosecution side of law, Thompson rediscovered his passion—the passion that had sent him to Austin and law school. He said, “As an assistant DA I had to make some tough decisions. Plea bargaining is difficult—figuring out what to offer someone. Can we save that person, or is he or she incorrigible with no way of saving or helping them? However, the first choice always had to be to protect society from that person.”

The pull of East Texas made Thompson want to return home, but in order to do that, many things—some of them out of his control—had to come together just right. First of all, he didn't want to uproot his family until his son graduated from high school. Second, the Angelina DA's office would have to have an opening, and Herrington would have to want to hire him. Thompson had laid the groundwork for that when he'd run into Herrington several years before. “They're working me to death here and I want to come back home. Let me know if anything ever comes open.”

May came and his son graduated from high school, then out of the blue, the stars aligned. Clyde Herrington called to tell him that he had an opening. With his newfound passion for the law, his desire to change worlds, Layne Thompson returned to his roots. However, he soon discovered the roots he returned to would also want him to take part in a trial that would put his skills and abilities on display for the entire world to see.

Herrington said, “Layne coming to the Angelina County DA's office was a Godsend. No way could Angelina County get an attorney of Layne's caliber and experience under normal circumstances, but Layne was from Angelina County and that is the only reason I could get him.”

An Angelina grand jury had just indicted Kimberly Clark Saenz on several charges including five capital murders by injecting bleach into dialysis patients. In other words, this would turn out to be a medical malpractice case with the death penalty on the line.

As they prepared for the trial, Thompson and the defense team referred to as Team Justice had a couple of fears. First, they worried that the inordinate amount of science and medical expertise involved in the case would overwhelm the jurors and take their focus off the real facts in the case. Second, while by law they didn't have to prove motive to convict, they worried that the jury wouldn't be able to get past the why. It's human nature to wonder, but could the jury get past it?

And last, Thompson worried about the youngest member of Team Justice—Chris Tortorice. He was worried because Chris would handle the brunt of the sciences in the case and he didn't have a lot of experience in that area. He had a lot to learn and a short time to get there.

* * *

As the attorneys came together, the investigative side was also transitioning. Sergeant Abbott got help in the form of Jim Hersley and Bill Horton, investigators for the Texas Attorney General's Office. Joe Reiker, a special agent with the U.S. Office of Inspector General, also provided a lot of help in the investigation. In fact, Reiker was instrumental in getting Tortorice in the case. Even before Herrington called the Attorney General, he'd heard of Tortorice and that he wanted to be involved in the Saenz case. Reiker had worked with Tortorice before and recommended him to Sergeant Abbott and Herrington.

They needed all the help they could get. One fact was becoming increasingly clear. DaVita Lufkin wasn't the poster child for well-run medical clinics.

On April 28, 2008, once all the patients had left the clinic, DaVita “voluntarily” closed their doors in what was likely a preemptive public relations move. Would state and federal agencies have forced them to shut down anyway? Odds are good that they would have.

In a statement to the
The
Lufkin News
in mid-May, DaVita officials said that they believed, “the events that led to our voluntarily closing the DaVita Lufkin dialysis center are the result of a criminal act by an individual who has been terminated and is no longer working at the center.” DaVita was playing the only PR card it had at that time, doubtlessly attempting to repair some of the damage done to their image, but the statement put the police investigators in a bind. The police department's job was to investigate and convict
whoever
was responsible, and they weren't about to make the same declaration DaVita did.