Killer Nurse (15 page)

Though Herrington didn't have to prove motive in order to convict, he still needed to combat the stumbling block of unsatisfied curiosity. It's human nature to want to know what caused a person to act in a certain way or do something—especially an act as heinous as killing people. What was their incentive? What was their goal?

With most homicides, the public understands the motive—they may not go along with it, but they can relate to it. Jealousy, greed, lust, and revenge all have been around since the beginning. These are the motives the public can understand. However, seldom are serial killings done for reasons as remotely pure as those listed above.

Herrington's problem going into
voir dire
wasn't proving or not proving a motive for someone to kill five people and basically attempt to kill five others by injecting them with bleach. His problem was to educate the potential jurors first that he didn't have to have a motive to convict Saenz, and second, that they may never know the true reason if she didn't tell anyone why.

Another one of Herrington's goals going into
voir dire
was to head off common misunderstandings concerning the evidence. He had a case that was 99 percent circumstantial, and he had to get the idea fostered by TV and movies that “circumstantial evidence” was a dirty word out of the potential jurors' minds. He started off telling them exactly what circumstantial evidence was. It's evidence that requires an inference to connect it to a fact. A suspect's fingerprint is found in a victim's home and the suspect shouldn't have been in that home. In this case, the fingerprint is circumstantial evidence—it infers that the suspect was, in fact, in the home, and any reasonable person would draw that conclusion from that piece of evidence.

All scientific evidence including DNA is considered circumstantial. Herrington told the individual jurors a story that a man kidnaps a woman, ties her up, and throws her in the trunk of his car, and no one sees him do it. He then drives that woman out into the woods, rapes her and murders her, and leaves her body at the scene, and still no one has seen him. The police find the murder weapon in his possession with the victim's blood on it, and they find his DNA all over the woman. Besides that, they have his footprints at the scene that match perfectly with the shoes he's wearing. They also have the rope he used to tie her up found in his possession as well as pictures he took of her after he killed her. They also find her blood in the trunk of his car.

Most of the jurors were shocked to hear that every bit of that evidence was circumstantial. Herrington basically shot down the perpetual belief that circumstantial evidence may not be used to convict someone. More often than not, circumstantial evidence is the only evidence linking an accused to a crime.

The importance of circumstantial evidence is backed up by the Supreme Court. It has ruled that this type of evidence is fundamentally no different than eyewitness testimony. Most people who are convicted of a crime and later exonerated are the ones who had eyewitnesses testifying against them.

That fingerprint in the house can't be swayed to change its testimony.

Of course, a lone piece of circumstantial evidence may not prove conclusive. Take that fingerprint in the house. The fingerprint only proves the suspect was in the house—not that he or she killed someone or committed a crime, and in most cases the fingerprint can probably be explained away. However, it's a start because in order for the suspect to kill someone in the house, he would have to be in it. The accumulation of circumstantial evidence like the example Herrington gave the jury is what makes cases in court.

In Saenz's
voir dire
, Herrington came away with a jury pool that was smart and would stand the rigors of a long trial—ones who would pay attention and follow the evidence—and keep themselves away from jury misconduct. Because of the long trial, this one started with fifteen jurors—twelve members plus three alternates. Even though it lasted so long, they never lost a juror for any reason. People commented on how attentive and diligent the jury was, how they continued to take notes until the last person testified. If justice and fairness were sought, neither side could complain about the jury.

People said, and observations tended to bear out this fact, that in addition to Herrington's stated objectives, he had an unstated objective in
voir dire
as well. It stood to reason that if an attorney can use the process to educate the jury and send them certain messages, then that same attorney can also convey messages to the opposing counsel. Which was what Herrington did, whether intentionally or not.

During the selection process, two defense attorneys opposed Herrington: Ryan Deaton and Steve Taylor. During the initial process with the entire jury pool in the courtroom, Deaton was the one who spoke to the jurors. In that phase, Deaton made sure to point out that he was one of them, an East Texas good ol' boy, while Herrington didn't mention where he was from. Was this a strategy on the part of Herrington? Did he know that in the individual process he would more often than not oppose Taylor rather than Deaton? Could it be a coincidence that Herrington brought out his own East Texas roots only when he opposed Taylor, the attorney from Conroe, and not East Texas?

In answer to this question, attorneys in Lufkin gave a little smile and said, “Yeah, right.”

The three-week process to impanel the fifteen jurors saw some remarkable cooperation between Herrington and Taylor. Because this was a capital case, both sides had fifteen challenges to use, but seldom did. In fact, many of the potential jurors were dismissed on agreement from both sides. In this case, no challenges were required.

Taylor and Herrington worked well together, and both seemed to have the same objectives—find a jury pool that fit both their needs. The respect between the two attorneys seemed obvious. That same respect didn't seem to exist when Deaton was the one participating in the individual process. Judge Bryan gave a lot of latitude to both sides. However, there were four objections during
voir dire
, and all four of them from Herrington about Deaton. The judge upheld them all.

One thing was sure in the Saenz jury selection: the process was smooth and organized on Herrington's side. When both sides were through asking and talking to the potential juror, that person was asked to step out while the attorneys conferred. For the most part, Herrington had no one to confer with and had no problem making up his mind. He had an answer for the judge immediately. However, the other side was an entirely different story. Just who made the decisions on which jurors to select can be debated—maybe all three did. After each juror left, Taylor, Deaton, and Saenz huddled together and whispered as if they were about to call a football play. These conversations usually took a while.

At one point, Herrington informed the judge that a potential juror was acceptable to him. When this happened, the defense took to their huddle with all three of them having their say. After about five minutes, Herrington sat back down. Ten more minutes passed before the defense team asked the judge if they could give an answer after lunch.

At this point, a ticked-off Herrington stood and asked the judge to take back his recommendation. If the defense was going to get the lunch period to make up their minds, he should, too. Over the objection of the defense, the judge agreed.

Taylor said later that the defense had a checklist of everything they wanted to cover in
voir dire
. Along with that, they had the graded surveys. He also said that Deaton and Saenz had to sign a sheet saying they agreed to the selection of each juror chosen. Taylor said that they didn't choose anyone that Saenz didn't want. On one in particular, she just had a negative feeling about that person so they didn't choose him.

Potential jurors saw and interacted with only one person on the prosecution's side—Herrington. Every single one of the people who sat in the witness stand saw and spoke to the same prosecutor. This wasn't the case with the defense. Taylor handled a lot of the interviews, but Deaton took several himself. Taylor later said that Deaton or his father knew some of the jurors from the community. These were the ones Deaton chose to talk to.

David Bradford was one of the people whom Deaton questioned. Bradford was a local building contractor, but he also had the distinction of being the father of a former Lufkin quarterback who'd gone on to the University of Texas as a punter. Of course, Deaton talked to him about his son and let him know that he, too, had played football for Lufkin High School and gone to college on a football scholarship. Besides that, Bradford was friends with an elected official that Deaton had run against at one time. Deaton asked him if he held it against him for running against his friend. Bradford responded that he didn't even remember him running in any election.

Bradford was an ideal juror for both sides, and was put on the jury panel.

Because Taylor and Deaton were totally different in just about every way, what the potential jurors saw, heard, and experienced depended on whom they drew on the defense team. A couple of the people who sat on the stand for
voir dire
later aped Deaton, imploring them, “Do you promise me if you are chosen to be on the jury that you won't let the others sway you into a position you don't believe? Do you promise me you won't let the others bully you?”

All of the ones Taylor questioned in the process also remembered him, and one part that he prepped them for not only stuck in their minds, but also played a crucial role in the trial. Deaton's questions in
voir dire
largely centered on guilt or innocence. However, Taylor understood that there could possibly be two phases to the trial—guilt and punishment—and he was the one who introduced a concept in the jurors' minds that wouldn't go away.

Because the case involved the death penalty, a good part of the individual selection process involved issues with the death penalty and those special circumstances questions, especially that first one: If the jury couldn't get past that “future danger to society” question, there would be no death penalty. Common sense dictates that if someone is guilty of killing five people and trying to kill five others, they are going to be a danger to society. Who just starts killing people and then suddenly stops?

This was where Taylor's genius came in. He brought forth the question of exactly what society this question referred to. He went on to tell the potential jurors that if Saenz were found guilty, the least she could receive was life in prison without the possibility of parole. His words reverberated with them. “You won't see her at Walmart or Whataburger. She will only leave prison in a pine box.” In other words, the only society that she would be in if found guilty was a prison society—one that is regimented and with armed guards. “It would be extremely difficult for her to commit future crimes in prison,” he concluded.

Taylor had planted a seed in the potential jurors' minds just in case he needed it. But according to people close to the defense team, if his client had listened to Taylor, she would have pled to the charge.

And there was a deal on the table.

The plea called for Saenz to plead guilty and she would receive a substantial amount of jail time for each charge, and it would run consecutively, but she would avoid the death penalty. With the deal, she would have spent a lot of her life in prison but would eventually be eligible for parole. There was a catch, however. The deal was only good until the twelfth juror was selected. After that, the deal left and they went to trial.

Taylor looked at the charges, all the evidence against Saenz, and whom they were facing. He discussed the deal with Saenz and her family and advised them to take it, but Saenz refused. After all, she had one of her attorneys telling her he'd get her off, and that was better than prison.

During
voir dire
, someone close to the defense said, “Taylor handled the choosing of the jurors, Deaton will handle the trial, and when Saenz is convicted, Taylor will have to come in and save her life.”

The mounting tension was obvious as the jury selection neared an end. Saenz and the defense attorneys were more on edge than usual. When the attorneys agreed on the twelfth juror, the deal on the table died. One of the most sensational and unique trials in East Texas history would actually take place.

CHAPTER
16

THE PARTY BEGINS

If Kimberly Clark Saenz had shone like a new penny at pretrial hearings, she was fairly luminous when the trial began on March 5, 2012. She was the center of attention in the trial of the century in East Texas. Writers, news reporters, and TV camera crews were everywhere to capture the moment. The courtroom was packed with potential witnesses waiting to be sworn in as well as spectators who were just there to witness the trial.

Saenz wasn't the only one enjoying the moment. Her defense attorney, Ryan Deaton, who sat on the right of the defense table, looked so pleased and so confident that he had an almost blissful expression on his face. Saenz sat close—really close—to Deaton's left, and then all the way on the other end of the table away from everyone was Steve Taylor. He wasn't needed anymore. He'd gotten Deaton to the big dance and now he was the ugly date who was dumped.

It wouldn't take long for Deaton's expression to change, or for him to get into trouble. As soon as the trial process began and before the jurors came in, Deaton confessed to the judge that he felt unprepared for the trial and wasn't prepared for opening statements. He then started telling the judge the importance of the opening and got admonished by Judge Bryan for lecturing him on opening statements.

It is seldom a good idea to tick the judge off in the first minutes of a trial. But that wasn't the last time Deaton would get under Judge Bryan's skin during trial, or the last time that day for that matter. Besides, with a jury waiting in the next room and with four years to get ready, there was no way this trial was going to be postponed.

Herrington's opening statement was delivered in the same way he had conducted the questions at jury selection. He began by telling the jury panel of ten women and five men, which included a black male and two black women, “The medical profession is an honorable one. We put our faith in them. We don't check on them—we trust that they are going to take care of us.” That trust was something Saenz violated.

In his opening, which lasted about thirty minutes, Herrington said little that stuck with anyone, with one exception. He mentioned some Internet searches they'd found on Saenz's computers that would prove interesting.

When he was through, he turned the floor over to Deaton, who didn't waste any time trying to prove he wasn't ready for his opening and ticking off Herrington, the judge, and several of the jury members.

Ryan Deaton began, “DaVita is a puppet master—”

That's as far as he got before Herrington objected. Judge Bryan sustained the objection.

Deaton began again, still focused on blaming DaVita. He told the jury how DaVita was a Fortune 500 company who manipulated everyone and had their tentacles in everyone. Herrington again objected to hearsay, and again the judge sustained the objection.

Deaton made one statement that the jury members remembered: he promised that Saenz's husband would testify that he'd been the one who'd done the searches on the computer, and not Saenz. Since this was the first anyone had heard about these searches and they'd piqued everyone's interest, so did this promise.

Opening statements complete, Herrington opened the trial with guns blazing. His first witness was sixty-eight-year-old Linda Hall, the surviving eyewitness that claimed to have seen Saenz inject the patients with bleach. Ms. Hamilton, the second patient who'd claimed to see Saenz inject the patients on April 28, had died before the trial began.

The elderly black woman was obviously in bad health. She was rolled into the courtroom in a wheelchair, and had to be helped out of her chair and into the witness booth.

As they rolled her in, out of respect and courtroom etiquette, prosecutors Herrington, Tortorice, and defense attorney Taylor stood. Only Deaton continued to sit, and spit his dip in a Styrofoam cup.

Corporal Mike Shurley several years before had listened to Ms. Hall tell her story, and when she was finished, for the first time he had believed that Saenz was guilty of those two aggravated assaults. Ms. Hall had delivered his aha moment. He and Sergeant Abbott had no doubt about the credibility of this witness.

When Herrington was through taking her through the paces, neither did any of the unbiased people in the trial.

Ms. Hall was deadly to the defense. She would hurt the defense even more when Deaton began his cross-examination. In the process of questioning her, Deaton raised his voice, which brought not only an objection to the way he was treating her, but a murmur from the crowd. Several of the jurors' mouths fell wide open at the insolent manner in which Deaton spoke to Ms. Hall.

More than the disrespect he'd shown her, he simply could not shake her testimony.

After Ms. Hall left the stand, Herrington brought in relatives of the victims to describe their loved ones' conditions at the time of their incidents. First was Mr. James Rhone, the husband of Marva Rhone, one of the patients that the two witnesses claimed Saenz had injected with bleach. Although Ms. Rhone had survived the incident, she unfortunately hadn't lived to testify.

Mr. Garlin Kelley's widow followed, and then Herrington ended the day with the video deposition from Ms. Lurlene Hamilton. Early in the investigation, Herrington had anticipated that his witnesses might not make it to trial, and he'd deposed Ms. Hall and Ms. Hamilton just for that purpose.

Because he did, he was able to let the jury see and hear Ms. Hamilton's testimony.

Even so, in the long run, it wouldn't be Ms. Hamilton's deposition that played a major role in the outcome of the trial—it would be Ms. Hall's deposition that turned out to provide one of the most critical pieces of evidence in the entire trial.

* * *

Day two started off with a second video deposition from Ms. Hamilton, and then Herrington brought in DaVita employees who'd worked at the Lufkin facility in April 2008—most of whom no longer worked for DaVita.

The first was Angie Rodriguez. She was the PCT teamed with Saenz on the morning of April 28, 2008. In fact, Ms. Rhone and Ms. Risinger were her patients. She left her patients in the care of Saenz, and when she retuned from break, she found Ms. Rhone in distress. She testified, “Kim wasn't happy—didn't like her job and complained often. I honestly thought she was going to leave.”

Rodriguez was the first but not the last person to describe how Saenz waited to be the last person in the med room before drawing up her meds. She also stated that Saenz did not like patient care. She only wanted to be the med nurse.

Deaton's cross of Rodriguez left people in the courtroom shaking their heads in disbelief. In order to attempt to impeach her testimony, he picked up his laptop off his table, carried it to the witness stand, and spent quite a bit of time looking for videotape of Rodriguez's interview with the police. Once he found it, he showed it to her.

He asked her if she remembered saying something specific to the police four years before, and like most of the witnesses, she didn't have a clue what her exact words were. He then had to find it on the computer and show it to her. This went on for most of her testimony—him standing by the witness box with his laptop searching for video to show her.

This was not a one-time occurrence but happened with many of the DaVita witnesses. Steve Taylor said later that he'd never seen a witness impeached by having to watch a DVD on a laptop.

Herrington and the prosecution team had transcribed every one of those interviews—all Deaton had to do was ask, “Can you provide me with a copy of the transcripts so I don't waste my time and money doing it myself?” However, instead of doing so, Deaton had times written down based on the times on the computer.

Deaton's fumbling for video made him look like an unorganized goof not only to the spectators, but to the ones who counted the most in that courtroom—the jury.

The next witness was Arlene Gamble, one of the monitors brought in by Amy Clinton to help find the problems at DaVita in April. Not only was she an RN with the title of Clinical Service Specialist, but she had been one of the DaVita instructors from 2003 to 2008.

As Chris Tortorice took Gamble through her paces, she seemed like an excellent witness—knowledgeable, confident. One of her biggest statements was that the water was all on a loop. What one patient got, they all got. If something harmful were in the water, all of the patients would be affected, not just one or two. This was something that many people would say over the course of the trial. Although Deaton tried his best to dispute, gloss over, or hide this fact, the logic of this statement was too simple to miss.

Unfortunately for the prosecution, Gamble ended up being counterproductive under the cross-examination. Deaton not only rattled her, but made her look unprofessional. She became visibly angry and Judge Bryan had to urge her to answer Deaton's questions. She did, but snapped the answers.

As Tortorice watched his witness come apart on the stand—while Saenz and her supporters were all smiles, nods, and gleeful whisperings—he knew he had to do something. When Deaton finished with her, an idea came to Tortorice on the spur of the moment. As Gamble had testified, they'd entered one of the bleach buckets as evidence.

Tortorice also had a bottle of water on his table. He took the bleach bucket and set it on the floor, and squatted down next to it with the bottle of water. He pretended to pour bleach into the bucket and then use a syringe to draw it up. He showed the jury that to use this method—the one that Saenz claimed—he needed to squirt the bleach right back into the pan he'd just drawn it out of.

It was a physical demonstration of exactly what the witnesses had claimed Saenz did, and he had Gamble there to tell the jury how ridiculous it was. It made a lasting impression.

* * *

The talk in the hallways and courtroom was as much about Saenz and her actions in the courtroom as it was with what was happening in the trial. As she had in pretrial hearings,
voir dire
, and the first day of the trial, Saenz seemed to be enjoying herself immensely. People commented how on a number of occasions, Saenz seemed to act as if she were at a social event. She laughed, smiled, and carried on like anything but someone on trial for her life.

Her immediate family sat in the first row of pew seats directly behind her, and she was constantly turning to them, gesturing, mouthing words, and giving hand signs. At times she appeared almost giddy.

At one point during Cartwright's testimony, a debate had ensued between the defense and prosecution at the bench. Representing the state in the debate were Thompson, Tortorice, and Herrington. They were opposed by Deaton. Taylor had remained seated, leaned back, and relaxed at the defense table.

During the debate, Saenz turned to her family with that huge smile she often displayed, and held up three fingers to indicate the state and one for her attorney who was battling them all by himself.

Why this was so humorous was anyone's guess. Particularly since her attorney lost the argument.

But this was par for the course.

The general consensus was that either Saenz was supremely confident she was going to get off, or she didn't care. However, it wasn't just Saenz who exuded confidence to the point of smugness. Deaton; Lesa and Vann Kelley, Deaton's investigators; and most of Saenz's family all exuded the same attitude. The only exceptions were Saenz's father, Kent Fowler, and her court-appointed defense attorney, Steve Taylor.

Because the courtroom was on the second floor of the courthouse and there was only one way to access it—the main stairwell in front of the building—everyone, including jurors, got an opportunity to view the spectacle Kim Saenz put on. In addition to Saenz's supreme confidence, the other incongruous thing about her was that she didn't
look
like a serial killer. Not a single person in that courtroom could say what a serial killer was supposed to look like, but whatever it was, it wasn't Saenz.

Herrington told the E! Program after the trial, “One of the things about Kimberly Saenz that is scary, she isn't someone if you knew her or looked at her, you could tell that she would do something like this.”

While the people in the courthouse—including the jury—couldn't imagine what a serial killer might look like, they were getting a good demonstration of how one might act. Saenz's lack of seriousness made an impression on them.

Day three began with the survivors. The prosecution had charged Saenz with five counts of aggravated assault, against Ms. Risinger, Ms. Rhone, Ms. Bradley, Ms. Oates, and Ms. Castaneda. They didn't get as much media attention as the patients whom Saenz was accused of having murdered, but although Ms. Risinger had died in a car accident and Ms. Rhone of natural causes before the trial began, the other three were very important to the trial, and they were on hand to tell their stories.

The prosecution led off with Ms. Bradley, a white female from Lufkin who appeared to be in her sixties. She was of average height and weight with light brown hair. She also walked into the courtroom and took a seat without assistance. For her age and health conditions, she was spry. No one looking at her in person would think she was a dialysis patient and had been one for several years—let alone a survivor of a bleach attack.