A Mother's Trial (32 page)

“Now, Doctor, in the preliminary hearing your answer to the same question was different. You said it was either a reservoir
or
that they had made a mistake and given her a hypertonic solution as a replacement.”

“I’d have to study her records in detail to see her intake, but the reservoir theory is most likely,” Holliday insisted.

“How long would this reservoir of excess sodium be present?” Collins went on.

“Several hours—depending on the state of the circulation, and the degree of peristalsis, which is the motility of the G-I tract. In shock-like states, there is a medical condition known as ileus, in which movement of material ceases—in effect there is paralysis in the gut—in which case the sodium could be there for hours.

“Also with poison—and this is very common with aspirin poisoning, by the way—there is a secondary absorption peak that occurs sometime later, even after respiratory therapy. That could also explain the fact that Tia’s sodium level increased twenty-four hours after her final admission to Kaiser-San Francisco.”

Collins followed with questions about Dr. Solcia’s letter to the Dallas doctor, Dr. Said, whom Sara Shimoda had contacted about the possibility of a pancreatic tumor. Solcia had reviewed the autopsy slides on Tia and had been asked for his opinion as to whether she might have suffered from a condition called islet hyperplasia.

Collins showed Holliday the letter Solcia had written to Said. “This letter does suggest the possibility of another fatal disease, does it not?”

“It keeps open the possibility. I don’t think it suggests it,” Holliday responded calmly.

“But do you agree with the doctor that unless you do both of the tests he suggests in his letter, you cannot eliminate the possibility?”

“One of the tests could not be done, and it is true that you cannot eliminate the possibility of islet cell hyperplasia without them. But I don’t feel the need to eliminate that possibility given the clinical setting in this case.”

“I have no further questions,” Collins said.

“I have no redirect,” added Josh Thomas.

“That’s all, then, Doctor. Thank you,” said the judge. “We’ll take our morning recess at this time. Please bear in mind the admonition the court has given you, ladies and gentlemen.” Ted turned to Josh. “What do you think about the islet hyperplasia thing?”

“I think it’s a total red herring. Boyd Stephens already testified that he couldn’t do that test because no tissue was available for electron microscopy.”

“The doctors were just reaching for some kind of explanation at that stage?”

“Yeah. Oh, anything on that juror?”

“I’ll have it for you on Monday. I’ve found somebody who was in the same group at Parents United with him.”

“Good man.”

“Who’s on after recess?”

“Lesley McCarcy.”

“Oh, we’re into the nurses now?”

“Yeah, nurse row. Three of them who heard Priscilla Phillips say she mixed that contaminated formula.”

“Against one of theirs—that Debby Roof—who says she can’t remember. And she’s been a friend of Priscilla’s since day one,” Ted said.

“Right,” Josh replied.

Week 5

Josh Thomas had notified both the judge and the defense about the problem that had arisen with the juror, and Tuesday’s session began in the judge’s chambers. Josh brought in Joanne Stoller, who worked in Marin County’s Child Abuse and Neglect program. The witness was sworn in and began to testify in chambers, out of hearing of the jury.

She had received a phone call approximately a year ago from a woman who identified herself as the ex-wife of the juror, she told the small group.

“This ex-wife said that her daughter had come home after spending a weekend with her father, upset and distraught because she was forced to sleep nude with him. Sometime later, I was attending sessions of Parents United when the father—this juror—walked in. Usually in those groups you say why you’re there, and he said that his ex-wife had accused him of molesting his daughter but that it was not true. He was attending the group for his own education on the matter, he said.”

 “Do you know whether he is still going to the group?” Josh questioned the witness.

“I met him recently and he told me the current things that were happening in the group.”

“No further questions, Your Honor.”

“Mr. Collins?”

“Are we to decide to disqualify this juror? On what basis? What does Counsel have in mind?” Collins said.

Josh suggested bringing the juror in to tell his story. If there was no explanation offered, the juror should be excluded for cause, he argued. “I don’t understand why during
voir dire
this man didn’t reveal this—perhaps in chambers if not in open court—because his case is not dissimilar in terms of class of offense.”

“I oppose bringing the juror in for interrogation at this late stage. I feel it would prejudice him to vote for conviction,” Collins said.

“Well, all we have is rumor,” the judge remarked. “And the relationship between the crimes charged is so completely remote.”

“I think he’s going to relate to the defendant because she feels unjustly accused and so does he—so I feel he would be prejudiced even if he’s not guilty,” Josh said.

“May I say something?” The witness spoke up brightly.  “I support Mr. Thomas because although the juror may not have committed the crime, he may have some denial barriers up in order to protect himself. It would make it difficult, I think, for him to hear this trial testimony without getting his own denial system in the way.”

“Well, Your Honor, the point is, there is no way we can dismiss this juror for cause. He did not perjure himself,” Collins argued.

After ten minutes of additional argument, the judge agreed with Collins. “There is no way we can bring in this juror to discuss this and then return him to the jury without prejudicing both sides. There is no legal foundation for dismissing him for cause. Your motion is denied, Mr. Thomas. Let us return to the courtroom.”

Josh was morose. He had made, in the end, a subjective, emotional decision to try to remove the juror. Ted had been unable to turn up much information on the man, and had not felt secure in expressing an opinion about whether to retain him on the jury. As it was to turn out, however, neither defense nor prosecution had read the juror accurately.

In open court, nurse Lesley McCarcy was followed to the stand by Jan Bond and Christine King, and the same issues were raised with each nurse by the prosecution and the defense.

Josh was able to connect Priscilla Phillips to the contaminated bottle of formula as each nurse swore she had heard the defendant confess to having mixed it. Each nurse also identified the bottle by size and color of the contents.

On cross-examination, Ed worked on the credibility of the nurses. Two of them were found to have made minor mistakes in their preliminary hearing testimony. Bond, the nurses’ aide, confused the functions of the NG and the IV and had to correct herself following recess. In addition, the nurses could not agree on exactly how the contaminated formula had been labeled, or whether Mindy Phillips’s name had been on it.

Caldwell also raised the issue of how Dr. Carte’s order indicating that only nurses were to mix Mindy’s formula came to be erased from the cardex the nurses kept on each patient. Carte’s order was dated February twentieth. On that same day, Debby Roof had checked off and initialed the order, indicating that she had transferred it to the cardex. The cardex was designed to contain only the most recent orders on each patient. As new orders came in, the old were erased. But although no new order had supplanted Dr. Carte’s, by February twenty-fourth, the day before the discovery of the contaminated formula, the order had—in fact—been erased. It was a mystery that was never to be solved, and it was not clear why Ed Caldwell had chosen to introduce it at all; the only person who stood to gain by erasing the order was Priscilla herself.

The rest of Tuesday and most of Wednesday were devoted to establishing the chain of evidence formed and maintained for the bottle of contaminated formula, which became People’s Exhibit 15. A police officer stated that he had transported the bottle from Kaiser’s lab to the police department. The property clerk at the San Rafael Police Department testified to mailing the formula to the FBI. Two FBI lab technologists discussed their findings. Their test on the contaminated formula bottle indicated a sodium content that was thirty times normal. In addition, the FBI technician testified that a visual inspection of the eleven handbags belonging to the defendant revealed no trace of baking soda. Surprisingly, he had not conducted more sophisticated tests on the handbags, testifying that he believed that a visual inspection was sufficient. Several Kaiser employees completed the chain of evidence by describing their roles in supplying control samples of polycose and Cho-free formula to the police department. These samples had been forwarded to the FBI lab and found to contain appropriate amounts of sodium.

Late Wednesday afternoon, Josh called to the stand Dr. Howard Sussman, a Stanford pathologist and laboratory director. He testified about procedures for drawing and evaluating blood samples, and about quality control in the laboratory. He described the numerous verification procedures used to assure test-result accuracy.

On cross-examination, Al Collins scored one important point. “How are stool sodium tests run?” he asked.

“The Stanford lab does not run stool samples for electrolytes,” the witness said. “We send them to a reference lab.”

“Why is that?”

“We’d have to set up a whole method for handling it. It would be too expensive.”

“Have you ever done a stool sodium test?”

“Not personally, no,” the doctor said.

At the defense table, Ed wrote a furious note on his tablet. If mighty Stanford University Medical Center—one of the foremost hospitals in the country, if not the world—did not feel that the expense incurred in designing a system for running stool sodium tests was necessary, they obviously did not have much demand for the tests. How was it that tiny Kaiser-San Rafael’s lab found it necessary? Ed wondered, suddenly, whether Kaiser-San Francisco’s lab ran their own stool sodium tests. It would be a point worth exploring. He had his chance the following day.

Dr. Pat Hardy, a pediatrician with Kaiser-South San Francisco, opened Thursday’s testimony with an account of his treatment of Mindy Phillips following her release from Kaiser-San Rafael. He had seen her once a month between March and June 1978. During that period she gained four pounds and four separate serum sodium tests had been normal.

Dr. Hardy was replaced by Kaiser-San Rafael lab technologist Judith Kehrlein. During direct examination, Josh questioned her on Kaiser-San Rafael’s lab accreditation—a point that grew into an irritating side issue he would rather have avoided.

“We are accredited by the Joint Commission on Hospital Accreditation and are attempting to be accredited by the American Society of Clinical Pathology—which is fairly stringent. There are certain requirements as to quality control,” she added, leaving an opening for the defense that she was to regret.

“And how many times have you analyzed stool and urine for electrolytes?”

“For fifteen years, at the rate of three or four a week. There is a standard material we purchase as a control substance for urine and stool samples.”

Josh asked her what procedure had been used to test Mindy’s contaminated formula and she described what she had done—including the decimal point mistake she had made—and the various steps she had taken to protect the formula after its contamination had been discovered.

On cross-examination, Al Collins jumped on the technologist’s testimony regarding the accreditation her lab was seeking.

“How long has Kaiser-San Rafael been trying to gain their accreditation?”

“I don’t know.”

“How come your lab hasn’t qualified yet?”

Judith Kehrlein bristled. “It’s strictly a prestige thing.”

“Have you any idea when your laboratory will manage to gain this accreditation?”

“Not being clairvoyant, no,” the witness snapped.

After lunch, Collins asked Judith Kehrlein about the techniques used for running electrolyte samples. She described the function of the diluter and centrifuge. Then there were questions on standard deviation.

“We accept standard laboratory acceptances plus or minus ten percent. But we have a quality control program for sodiums, and the standard deviation for those is considerably smaller. I believe it’s two milliequivalents per liter,” she said.

“So with a determination on a serum sodium of one-fifty, a standard deviation of ten percent would be between one-thirty-five and one-sixty-five, correct?”

“It would be plus or minus fifteen.”

On redirect, Josh established that although theoretically there could be a ten-percent deviation in test results, in practice the Kaiser-San Rafael lab did much better. On each sample, three tests were run, Judith said. She pointed to one series of tests which had been run on Mindy’s blood.

“On this one I got serum sodiums of one sixty, one sixty, one fifty-nine. If I got a plus or minus ten percent, I’d be worried. I’d clean out the equipment and start all over.”

“Did anyone check your results on People’s fifteen—the bottle of contaminated formula?”

“Yes, the P.M. tech. I asked her to check my results and she did; they agreed with mine.”

“Thank you. I have no further questions.”

Dr. John Iocco, the Kaiser-San Francisco pathologist who had already testified about Tia's autopsy, returned to the stand Thursday afternoon to discuss San Francisco’s laboratory accreditation. He was a witness whom Josh called in an effort to strengthen the jury’s impression of Kaiser-San Rafael’s lab competence and efficiency, but in fact his testimony worked more to the advantage of the defense. For it turned out that Kaiser-San Francisco already had the accreditation that San Rafael’s smaller laboratory was trying to acquire, yet—like Stanford—Kaiser-San Francisco did not run stool sodium tests, but sent them to a reference laboratory.