Killer Nurse (17 page)

CHAPTER
18

THE STORM

In the courtroom, no one saw the explosion about to happen with the judge. Prosecutor Chris Tortorice had called to the stand Dr. Imran Nazeer, a man with impeccable credentials, but he was also the medical administrator for DaVita in April 2008, and therefore in defense attorney Ryan Deaton's crosshairs.

After Tortorice passed the witness to Deaton, the trouble began.

It began with Deaton asking Dr. Nazeer a question. “Okay. And back in April of 2008, administration had told you and your facility that y'all would have an order that all adverse occurrences—”

Tortorice objected on the grounds that the question was hearsay and assuming facts not in evidence.

Although Deaton said he would rephrase the question, the judge called them to the bench anyway. This wasn't anything unusual. This trial had to set a record for bench conferences. Unfortunately, this one was off the record, and exact words in that conference are not known.

When the trial resumed, Deaton asked the same question that Tortorice had just objected to. Tortorice objected again.

The judge, obviously irritated, said, “Come up. That's what we just talked about.”

People described Judge Bryan as a duck in the trial. Cool, calm, and collected on the surface, but feet pedaling furiously underneath. The court had only seen the surface half of the judge—now they were about to see what lay beneath.

The conversation at the bench was again off the record, but it didn't stay that way long. Judge Bryan's face turned the color of a ripe tomato. Furious, he hustled the jury out of the courtroom. When the jury left the room, the rest was said in open court and for the record.

Tortorice told the court that the prosecution had an issue with a secret recording done by Deaton of Dr. Nazeer.

Deaton responded as Judge Bryan simmered. “First, the recording was not done by me. Secondly, whatever agreement I had with [DaVita lawyer] Mr. Sprott, he's a civil lawyer. He's not part of this case. Okay?”

When Judge Bryan said, “So . . .” through clenched teeth, Deaton continued.

“I had no agreement with the district attorney's office. And I only intended to use [the recording] if the man lies. That's it—or misstates what he told me.”

Judge Bryan then asked Deaton, “So how many other ones did
you
record?”

Deaton responded, “Just one. We've only been allowed to talk with one witness, that being Mr. Nazeer.”

The disrespect of not calling him doctor was nothing new for Deaton.

Judge Bryan then asked Deaton, “So did you know it was being recorded?”

It was hard to believe the judge's face could turn even redder but it did when Deaton replied, “I did not. I didn't.” Deaton went on to tell him that his investigator had recorded Dr. Nazeer, not him.

However, Judge Bryan wasn't buying what Deaton was trying to sell. He asked, “The person under your control and direction was there at the meeting, was present, that you're responsible for his actions?”

Tortorice started to join the conversation. “Your Honor, the information that—”

Deaton didn't give him a chance to finish. “Your Honor, it's not an issue if the man just tells the truth. It sounds like he wasn't going to tell the truth.”

The judge's words seemed to bounce off the walls in the deathly silent courtroom. “It's an issue when all counsel are responsible to the Court for being honest in their dealings between each other,” Bryan said. “That makes it an issue.”

As the judge simmered, Tortorice, who'd waited in the wings for this moment, knowing it was coming, spoke up. He told the judge about the DaVita attorney having come to him and telling him that even though they'd asked Deaton not to record the conversation and Deaton had agreed not to, at the time the DaVita attorney believed he had recorded it.

Everyone understood that Deaton's investigator, Vann Kelley, in the presence of Deaton, had secretly recorded a conversation with Dr. Nazeer, even though he had agreed not to.

Deaton had attempted to crawfish his way out of it before, but he was really scooting backward now. He said, “I'm not even sure it was intentional. In other words, we did go in with the idea of recording the statements. I don't think there's anything wrong with that. I don't—I mean, those—how that happened, I'm not exactly for sure, but the bottom line is, is that it's—I don't care. I don't want to bring it up. I have no desire to—”

Judge Bryan cut him off. “Then why are you bringing it up?”

Almost in a whine, Deaton told the judge, “I want to ask this man questions. That's all I want to do, and I want him to be truthful.”

At that time, it was decided by all parties that Clyde Herrington and Chris Tortorice would get to hear the recording, and the court took a break. Of course, the jury had heard none of this. Groups of spectators gathered in the halls to whisper about what was happening.

When the court resumed still without the jury present, spectators realized the fireworks were only starting.

As soon as everyone in the courtroom sat, Tortorice asked to approach the bench, and the judge motioned them forward. Deaton, Herrington, and Tortorice made the trek. Steve Taylor remained in his seat and leaned back, almost as if to say, “You told me to keep my mouth shut. Dig your own way out of the mess you created.” As Herrington commented after the trial, “Steve Taylor's honest, and that was probably the reason Deaton left him out of the defense—he wouldn't have put up with some of that stuff.”

Tortorice began by saying that Deaton hadn't allowed them to listen to the beginning of the tape. He'd requested a copy of the tape but had been denied.

Deaton told the judge, “I let them listen to the part where we walk in the room. The discussion has not been had at any point prior to that whether or not there's going to be a recording. We walk in the room, and Mr. Sprott says, ‘Let's get some ground rules. Do you want—or no recording.' I said okay. And that was it.”

Herrington then told Judge Bryan, “Judge, if you listen to the beginning of it, there's a clear indication it was going to be recorded, I think. That's the way I interpret it.”

Tortorice reiterated what Herrington had said. “They were joking, ‘we're about to be on the record,' then what appeared to be sounds like getting out of the car.”

Judge Bryan looked at Deaton and his words sliced to the bone. “What you asked me, ‘what does this have to do with anything?' When an attorney consistently misdirects the Court and engages in dishonesty, then it makes the Court's job doubly hard, because a judge does not know when to believe a lawyer or when not to. And that's where I find myself at. So anything you tell me, I have to scrutinize twice because I can't rely on what you tell me. That's the real problem.”

Deaton looked like a whipped dog. Perhaps if he had left it right then, he wouldn't have gotten both barrels, but it just wasn't his style to leave things alone. He said, “I haven't been dishonest with this Court.”

Judge Bryan glared at him. “Well, when you say things like, ‘well, the evidence is,' and then I ask you what is the evidence on a certain issue, you say, ‘well, it's what I believe.' And then I ask you what is the evidence, though? ‘Well, there isn't any.' That's not exactly being straight. When you misquote witnesses in questions saying, ‘well, if so-and-so said,' and that wasn't what was said—and some of it's been objected to and some of it hasn't—that's not exactly being straight.”

Deaton still pushed the issue. “In a normal situation, Your Honor, the only thing I would say is that people, lawyers who are investigating cases, investigators who are investigating cases, record conversations all the time—without a person's knowledge.”

Judge Bryan responded, “But there's not an affirmative comment that, ‘I'm not recording it.' And it's a little different when you're dealing with an attorney than when you're dealing with a citizen. You don't have to tell—there's some dispute whether you do or don't. I think there have been some ethics opinions or comment to ethics opinion that a person shouldn't record anybody if they don't—a lawyer shouldn't, but there's obviously certain protections that come with doing that, with recording them without telling them to preserve what they said. But when you have an attorney that you're dealing with, and if there was an affirmative statement that, ‘we're not going to record it' or an agreement that it's not to be recorded, then that's a little different because of ethics and other issues.”

It's not often that spectators in a criminal trial get to hear the judge call the defense attorney dishonest.

Tortorice commented after the trial that what Deaton had done was a violation of the rules of professional conduct. It's not a violation for citizens in Texas to record others, but attorneys and their representatives are different. However, this was even worse than that. It also violated a specific agreement that the attorneys would not record the interview.

After the trial, the prosecution team said that they respected Deaton's stamina. His psyche took some dents from the judge's tongue-lashing, but it didn't take long for the armor surrounding his personality to pop right back in place, and the judge's admonitions never seemed to bother Saenz at all.

The defense party continued like nothing had happened even as Herrington turned up the heat. At the heart of the prosecution's case was a long and difficult word to spell, “3-chlorotyrosine,” and Herrington called Dr. Mark Sochaski, director of analytical chemistry at the Hammer Institute for Health Research, as an expert witness to explain this word and what part it played in the case. Interestingly enough, this was the expert witness that Deaton attempted to exclude before the trial—the one that he said used bad science.

Officially, 3-chlorotyrosine is a marker of protein damage in the body, and many experts believed that bleach in the blood would not only destroy tissue, but also protein, and because of this, the aftereffect of the protein damage was 3-chlorotyrosine. They believed that the presence of 3-chlorotyrosine was an indicator of the effects of bleach on a person's blood. Dr. Sochaski had spent years studying the effects of chlorine on rats.

Proteins are composed of chains of amino acids linked together like beads on a large necklace, and were at the heart of his research and the reason that he believed that the effects of chlorine on rats would be the same as on humans. Rats have the exact same amino acids as humans do.

However, 3-chlorotyrosine, amino acids, chlorine, and rats were only part of what Dr. Sochaski traveled all the way to Lufkin, Texas, to testify to, and maybe not even the most important. The last part of his testimony, and probably the reason Deaton tried to get him excluded, would be huge in this case, and something the jury would talk about after the trial ended.

Early on in Abbott's investigation, after he discovered that the FDA and CDC could examine the syringes and bloodlines, he sent away fifty-one samples in what they called a blind study. Intermingled in those fifty-one random samples was the evidence. All the group receiving those samples knew about them were their identifying numbers, from 1 to 51. They had no idea which if any of the samples contained the evidence. As it happened, it was Dr. Sochaski who conducted the tests on those blind samples. The problem for the defense was that every single sample that Dr. Sochaski said contained bleach was an evidence sample, and every one that he said didn't, wasn't.

The next expert that Tortorice called was David Jackson, a forensic chemist with the U.S. Food and Drug Administration. His testimony was vital to the state's case. He was the person who'd tested all those bloodlines and syringes that Sergeant Steve Abbott had collected from DaVita. Using color charts, Jackson showed the jury exactly where he'd been able to find bleach and bleach residue in the evidence.

The expert witnesses for the state had all been interesting and appeared to be professional and competent. However, none would capture the attention of the spectators and jury like the next two. Leading off in what could best be described as a true
CSI
moment was a scientist from the FDA's Forensic Chemistry Center. Stanley Frank Platek had worked with the FDA for twenty-one years, and he worked in the trace evidence section.

When asked what he did, he stated, “Anything left behind. My specialty is small particle analysis.”

However, as it turned out, Mr. Platek had another specialty—puncture analysis, and this was the reason he was in Lufkin to testify. He would say, “Puncture marks in bloodline ports are very distinctive.” But that wasn't all; he also testified that syringe needles left a very distinctive mark and he could identify the exact needle that made the mark.

One of the lines he examined was that of Ms. Opal Few. She was the patient who'd died on April 26, 2008. A week after Ms. Few's death, Christy Pate from the Lufkin Police Department had discovered Ms. Few's labeled 3ml syringe in one of the confiscated sharps containers. This syringe undercut Saenz's argument that she used a syringe to measure bleach, because it was too small by far for that purpose. It was when Christy Pate discovered that bleach-laden syringe that the police investigation went from aggravated assault to murder.