Killer Nurse (22 page)

* * *

On Friday morning, the second day of deliberations, Walker took another vote. This time, they had ten jurors who believed Saenz was guilty of the murders, and two who didn't.

At the beginning of
voir dire
, the objective on both sides was to find intelligent jurors. They succeeded. That morning the jury began what they called probabilities study. Every single juror agreed that a DaVita employee had injected the patients with bleach. The bleach was in those bloodlines and syringes. The water didn't do it and there was never a big conspiracy to blame everything on Kimberly Saenz. As Herrington had said in his closing, “Deaton wants you to think that DaVita waited around for twenty-eight days on the off-chance that someone would see and report something so they could blame that person.” But none of the jurors believed that.

The question with all of the jurors wasn't if an employee injected bleach into the patients, but
which
employee did it. The jurors had the calendar that the state presented that had all the days that Saenz worked, which was only twelve days out of the twenty-eight that month. There were ten events on six different days.

The odds that Saenz would have been at any of those events were 40 percent.

Juror Karla Myers said, “Yeah, but how many other DaVita employees were also there on all of those days?”

They went through every time sheet on every DaVita employee.

Kimberly Saenz was the
only
employee who had worked on every day there was an event.

Juror Kimberly Flores, a math teacher, was the perfect one to help the jury conduct a probability study. The list of probabilities included: the probability of someone dying on the dialysis machine; the probability that Saenz was the only one working on every single day; and the probability of Saenz being the only name on any of the syringes shown to contain bleach. Add up the odds of all of those and multiply it out, and the odds are approximately 1 in 640,000,000.

And that didn't even take into account the two eyewitnesses who saw Saenz inject patients with bleach.

Another crucial element for the jury was the computer search, specifically the search, “Can bleach be detected in bloodlines?” The search with that phrase had been run in the early morning, the time Saenz normally got up to go to work, on April 2, 2008, the day after the first two patients died.

This raised the question in the jurors' minds: how could anyone using that computer have known about bleach in the bloodlines on April 2, 2008? The police would not be involved or collect the bloodlines for twenty-six days after that search was conducted. Not to mention, Saenz had herself told police, unprompted, that she hadn't conducted any computer searches on the topic. Deaton had promised the jury that Kevin Saenz would testify to explain away those searches on the computer, but though the jury had waited for him to do so, he never did.

The computer searches and the probability study were what won over the remaining jurors who'd still been leaning toward not guilty.

It became emotional in the jury room once they'd decided Saenz was guilty of the murders. Juror Martha Moffett said, “I really wanted her to be not guilty, but she's not,” and then she started crying.

Caren Brooks echoed what Moffett said. “I thought the evidence was just so compelling against Kim. She's a mom with kids and I kind of wanted to feel sorry for her. I wanted her not to be guilty, but after we got started, the evidence just showed otherwise.”

Kimberly Flores was another one who voiced that she wanted Saenz to be innocent. “We all wanted her to be innocent. My job every day is to pull for the underdog—I'm a teacher. I mean I wanted her to be innocent, she just wasn't.”

After the jurors found Saenz guilty of the murders, they still had those five aggravated assaults to consider, although some jurors now thought of them as nit-picking, when compared to murder. They didn't see the difference in life without parole and twenty years, or life without parole and a hundred and twenty years.

Daniel Phipps wasn't one of the jurors who felt the assaults didn't matter. He brought up the fact that there was family out there of victims not on the capital murder count, and they, too, wanted closure. Some patients in the audience were themselves victims of these assaults.

After the trial, Phipps said, “I was real strong on this, and I am glad I was.”

One of the other jurors who took the assault charges seriously was David Bradford.

Bradford said, “One of the funny dynamics that happened was the two jurors who were the most outspoken for the defense and not guilty, when we flipped over to the nit-picking, the two that were the strongest for innocent, once they saw the truth for what it was, they turned like they'd had a lover cheat on them.”

The jurors said it was 11–1, with the 1 being Bradford, for a long time on the five aggravated assaults. The eleven wanted guilty on all five. However, Bradford wanted the same evidence to apply to the assaults that applied to the murders. He said, “I was determined that the criteria they used for the murders should also be used for the assaults.”

He made a statement, “I can hold out till hell freezes over.”

In the end, the jury found Saenz guilty of the aggravated assaults of Ms. Marva Rhone, Ms. Marie Bradley, and Ms. Debra Oates. The two assaults they found Saenz not guilty of were Ms. Castaneda and Ms. Risinger. They gave Deaton credit for creating doubt with Ms. Castaneda. During the trial, he'd raised a question about whether she had actually choked on a piece of gum she was chewing, causing the onset of her problems.

Besides that, neither Ms. Castaneda nor Ms. Risinger had had bloodlines submitted for testing. Debra Oates's bloodlines weren't submitted either, but she was there to testify for herself.

At the end, they went around the table to get each juror's vote. Larry Walker told them that they all needed to say it loud so that everyone could hear one another. “It was guilty all the way to the last person, who was Daniel Phipps,” recalled Walker. “All of a sudden he kind of choked up like we all did from time to time, and this was on Friday right before four forty.”

Daniel Phipps said, “She's guilty, I know she's guilty, but can we have the weekend to pray about it?”

Larry Walker didn't know what to say, but then someone spoke up and reminded them that they still had to do the punishment deal Monday. Daniel Phipps said, “Then she's guilty.” They'd been at it so long, most of the jurors had completely forgotten that there was a punishment phase to follow.

Larry Walker said, “I'm not normally an emotional person, but after the guilty verdict, I'd almost made it home—right as I got in the driveway, it all came to a head. I couldn't get out of my truck. I had to sit in the truck five minutes. I had an emotional breakdown.”

CHAPTER
23

STRETCH MARKS ON THE SOUL

On Monday morning, April 2, 2012, four years and one day after Ms. Clara Strange and Ms. Thelma Metcalf died at DaVita, and exactly four years to the day of Kimberly Clark Saenz's fateful computer search, the jury filed back into the courtroom for the punishment phase.

The punishment phase in a trial is sometimes called the second trial, but the objective is different for both sides. The first phase is about guilt or innocence only. The second phase is about punishment, but now the fact that the person was convicted can also be used.

Otherwise, the second phase is exactly like the first. The prosecution puts on evidence and witnesses, usually in an attempt to get the maximum punishment, and the defense does the same, but to attempt to get the least punishment. Then the jury deliberates again to answer the question of what sort of sentence the guilty party will receive.

As the crowd filed in Monday morning for the punishment phase of the Kimberly Clark Saenz trial, her defense attorney Ryan Deaton, all the swagger and cockiness knocked out of him, sat slumped in his chair much as he had after hearing the guilty verdict. The big smile he'd worn throughout most of the trial had disappeared from his face. He sat without uttering a word for the entire process.

The reason for Deaton's silence was because of something that took place behind the scenes. Co-defense lawyer Steve Taylor had approached DA Herrington and asked him to waive the death penalty and give Saenz life.

Herrington told Taylor that he would only agree to waive the death penalty if Saenz changed her plea to guilty and waived her appeal options. If not, he was inclined to let the jury decide her punishment.

Taylor told him that Saenz wouldn't go for that, but then asked Herrington not to hammer on the death penalty in his closing. Herrington's response was that if Deaton was involved in the punishment phase, he had no choice but to seek the death penalty with everything he had.

But that wasn't all that was at stake. Saenz had two children, and neither Taylor nor Herrington wanted to cause them any more pain than they were already experiencing. Taylor later said, “Herrington knew what we were going to try to do in the punishment phase. I didn't want to destroy the young man [Jacob Hopper], a good-looking, hardworking, nice young man. Didn't want to put him through that.”

The problem was that hearsay isn't allowed in any phase of a trial, and people aren't allowed to tell what someone else told them. This was the reason that Jim Risinger wasn't allowed to tell what his wife had told him. Because of that, character witnesses would not be able to talk about or tell what the children had told them. The children themselves would have to be put on the stand to do that.

“If
you
want to ask witnesses what the kids said or things about them, then I'm okay with that,” Herrington told Taylor but, still seething from Deaton's closing the previous Thursday, also said, “If Deaton is involved, I can't do that. Deaton isn't trustworthy.”

What went on behind the scenes between Herrington and Taylor was unknown to most, but Monday morning, Taylor was the only attorney who spoke for the defense, and because of the agreement, Saenz's two children did not have to testify.

Kim Saenz had been escorted back to the courthouse in chains Monday morning for the sentencing hearing. During the trial, she'd worn makeup and dressed fairly nicely, but that wouldn't be the case for the hearing. Her face, devoid of makeup, showed that she appeared to have spent the entire weekend crying. Her eyes were puffy, and her face was red. After the jury had found Saenz guilty of four of the six charges, sheriff's deputies took her to the Angelina County Jail, where she was placed on a ten-minute interval suicide watch. Normally, the county had prisoners they suspected of suicidal tendencies on a thirty-minute watch.

Saenz sat between a totally dejected Deaton, and Taylor, who for the first time was actually sitting close, not pushed away from the table. Her attitude was also in stark contrast to what it had been most of the time during the trial. Without a doubt, she was no longer enjoying the process going on around her. The only person on the defense side who showed any signs of life was Taylor, and he had a job to do—attempt to save her life. From the beginning, he'd been the only one who'd taken a realistic approach to the trial, the only one who'd attempted to prepare for this eventuality.

Prosecutor Clyde Herrington began the punishment phase by calling two Lufkin police officers, both of whom had arrested Saenz before for domestic problems with her husband. Then he called Sergeant Steve Abbott to testify. Abbott testified about a few of the jobs Saenz had, including the firing at Woodland Heights, but Herrington didn't ask him to go into detail. He then passed the punishment phase to Taylor.

It soon became clear that the defense had real problems with this phase of the trial. They were severely lacking in character witnesses for Saenz—not because no one would have spoken for her, but because all of her supporters had been with her in court and so weren't allowed to testify on her behalf now.

This was the reason attorneys plan for this stage even if they don't think they may need it. Without prior planning, they only had from Friday evening to Monday morning to get this together. And Saenz's life was at stake.

Cheryl Pettry, the mitigation specialist, said that she only spoke to Deaton twice: once when he wanted her to sign an affidavit to get a continuance, and after the trial when he called her at her hotel room because someone told him she'd said something bad about him. She fully admitted she had said a lot of bad things about him.

Vann Kelley, the investigator, hadn't helped matters either, because he, too, had apparently assumed that this phase of the trial would never take place. And Saenz had insisted that all of her family members sit in the courtroom. Now that they were needed, they couldn't testify on her behalf.

Pettry had been able to find some people to come in and testify, including a couple of people from Fleetwood Transportation, the place that had employed Kimberly Saenz before she married Kevin and went to nursing school. Pettry also found a couple from the Central School in Pollok, a man who coached her daughter's softball team, and the preacher from Saenz's church. Even though he could have objected to some of the testimony, Herrington let it go. In fact, throughout the entire process, there was not one single objection from either side.

The last witness Taylor called was Frank Aubuchon, an expert with the Texas Department of Corrections. Aubuchon told the jury that life in prison is extremely structured. While violent incidents happened in the male prisons, there were hardly ever any incidents in the women's prisons.

He told the jury that at the present time, there were twenty-seven women serving sentences of life without parole, and if sentenced to life, Saenz would share a cell with one other woman, who also would have to have a sentence of sixty years or more.

The last fact he told the jury gave them a little pause. The only jobs Saenz qualified for were in the kitchen or the laundry. These two jobs would give her access to bleach.

When Taylor was through, Herrington gave his closing remarks, but they were nowhere close to what he'd done at the end of the trial phase because his emotions were different. When he delivered his devastating closing in the trial phase, he had been furious with Deaton and the misrepresentations. In the punishment phase, Deaton wasn't involved and therefore couldn't fan those flames that still smoldered in Herrington.

When he sat and gave the floor to Taylor, he did so without asking the jury for the death penalty. It was still on the table, but he didn't ask them to choose it outright. He'd told Taylor he wouldn't push the issue if Deaton didn't speak, and he was a man of his word.

But it wasn't Herrington's closing that stood out in the punishment phase—it was Steve Taylor's. He'd already prepped the jurors in
voir dire
for this eventuality. They already knew about the society that Saenz would enter, and it wouldn't be the same one as the jurors or their loved ones. She would never be a danger to their society again. She would only leave prison in a pine box. They knew this, but he also reminded them.

The audience sat spellbound as Taylor told them about “stretch marks on the soul.”

“Each of us goes through life experiences that make us who we are,” he said. “Sometimes there is a fine line of something we'll always remember and something we'll never forget. Sometimes that line is kind of wavy and things cross over.

“Capital cases aren't just tough on the families of the victims or the accused. It's very tough on the twelve people sitting in the box. You are also innocent participants in the trial. You were asked to dedicate your time to serve your community to be impartial jurors.

“In making decisions we go back to our roots, our parents, grandparents, and the life changes that make us who we are. Life-changing experiences leave stretch marks on the soul.”

* * *

If Deaton had looked like he'd taken a giant punch in the stomach that morning, the twelve jurors, men and women alike, had filed in looking like they'd gone three rounds with Mike Tyson. The tremendous burden they'd been placed under showed in their faces and posture. The members of the jury were all mentally and physically exhausted, and they still had to deal with the punishment phase, and then decide whether they would vote to have Saenz executed—not an easy topic to rest on someone's mind and shoulders for an entire weekend.

During the trial they had been alert and followed every word. They had taken notes and been engaged in every facet, even the boring stuff. Now, their eyes almost looked glassy. The enormity of what they had to decide seemed to turn their personalities inside out.

In his closing, Taylor had talked about the burden placed on the jurors, and it was indeed daunting. In the end, every one of them had not only stretch marks on their souls, but scars. Since the death penalty had been a major topic in
voir dire
that began at the end of January, they'd had it on their minds for over two months. Without a doubt, Steve Taylor left a lasting impression on them. They slept with his words, “If she's found guilty, she will only come out of prison in a pine box.” In his closing, they'd heard it again.

After the trial was over, several jurors quoted Taylor saying, “You won't find her in Walmart or Whataburger.” The seeds he'd planted about the society that Saenz would be in, and the fact it wasn't the one they'd gone in expecting, also left a lasting impression.

There were some other things that these jurors came out of
voir dire
with. Most simply didn't believe Herrington was truly pushing for the death penalty.

These feelings were magnified later in the punishment phase. It seemed like Herrington only put on a token case for the death penalty. He never challenged Taylor, and even the jurors saw places where Herrington could have easily done so.

Then there was the fact that Herrington did not even ask for the death penalty.

After the trial was over and punishment meted out, the question was, just who had saved Saenz's life? It's not a simple matter to sit in judgment and say someone should die. Death penalty cases are complex and require the jury to make decisions about life and death that are far beyond the usual juror decision of guilt or innocence.

It's also extremely confusing. The people who construct the laws and procedures use language typically foreign to the people whose understanding of it is the most crucial—the jurors.

To wit: “In death penalty cases, mitigating factors do not have to be proven beyond a reasonable doubt, and jurors do not have to agree on the existence of a particular mitigating factor or on how much weight it should be given. However, jurors must find that at least one aggravating factor has been proven by the prosecution beyond a reasonable doubt in order to find the defendant is eligible for the death penalty.”

This is not the language that most people use every day, and it even confuses people who do use legal language. Even Taylor and Herrington got befuddled while trying to explain it to the jurors in
voir dire
.

The jurors left the courtroom to deliberate, in effect, whether Saenz lived or died. (Although technically speaking, the jury doesn't make that decision—the judge does. The judge makes his decision based on the jury's answer to one, and maybe two, special circumstance questions. However, every juror in that room knew what the effects of their answers would be.)

Of course that first question was the vital one because it was really the only one the jury had to answer. They would only go to the second one based on answers to the first. The first question is often called the “future danger” question.
Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.