An Almost Perfect Murder (20 page)

“So, if we’ve had testimony from a cardiologist in this case that mitral valve prolapse, while in and of itself is not really dangerous, mitral regurgitation, where the blood flows back, can lead to arrhythmia, which can lead to fibrillation, which in some instances can lead to sudden cardiac death—would that cardiologist be wrong?”

“I don’t know that,” Dr. Jones replied. “I’m not a cardiologist.”

“In the echocardiogram report that you considered, the doctor finds a mid-systolic click, with a very short systolic murmur heard in the left-lower sterna border and apex,” Baum said. “Do you understand what that means?”

“I don’t understand the clinical significance of that.”

“Isn’t it true that a click is an irregular heartbeat and something that when heard and detected is further assistance in diagnosis of heart problems?”

Baum was trying hard to get Kathy’s ob-gyn to state in court that Kathy had a heart problem. However, Dr. Jones continued to stand his ground.

“Not that I’m aware of,” Dr. Jones responded.

“In the portion of the report of this cardiologist for recommendations, you could perhaps take a look at page three of the report.”

“I have that page.”

“
Suggest yearly check, with possible echocardiogram every few years for further evaluation of the prolapse and the mild mitral regurgitation, which is clinically not significant at this time.
You understand that to mean that the cardiologist, in light of what he knew of the history and the findings that he made, recommended yearly checkups with possible echocardiogram every few years?”

“That would have been the advice he would have given Kathy, yes.”

“Now, with that in mind, and being her regular doctor who she saw probably, what, three or four times a year?”

“Once a year.”

“Once a year,” Baum repeated. “Did you check with her to see if she was having what this doctor recommended—that is, these periodic echocardiograms?”

“Kathy had no physical symptoms or complaints that she described to me,” Dr. Jones offered, instead of answering the question.

“Did you ask her if she was having regular echocardiograms as the cardiologist recommended?” Baum asked, persisting.

“No.”

“And it was also recommended by the cardiologist here in the report,
Also suggest a treadmill after her fortieth birthday to evaluate for any arrhythmias with exercise.
Did you check with Kathy Augustine to find out if she was having, as recommended by this cardiologist, a treadmill after her fortieth birthday?”

“No, I did not.”

“Did you recommend that she do that after her fortieth birthday?”

“We discussed the report probably at the time it came back after her visit with Dr. Boman.”

“And she was under forty at that time.”

“She would have been under forty years old at that time.”

Baum brought up the fact that Kathy was still a patient of Dr. Jones’s after she turned forty, for approximately another nine or ten years.

“At any time, did you ask her, ‘Listen, Kathy, that cardiologist recommended that you have a treadmill test after you were forty. I think it’s a good idea that you do that’?” Baum asked.

“I hadn’t discussed it with her,” the doctor replied.

“And it says in here the reason the cardiologist wanted her to have a treadmill after age forty was to evaluate for any arrhythmias, doesn’t it?”

“Yes, it says that . . . with exercise.”

“And arrhythmias, as you’ve understood and agree, is one of the possible consequences of mitral regurgitation, which can lead to a more serious health problem,” Baum stated. “An arrhythmia is a more serious health problem, isn’t it?”

“Arrhythmias are common coincident findings with mitral valve prolapse.”

“And arrhythmias can cause fibrillation?”

“I’m not a cardiologist. I can’t answer that question.”

Baum thanked Dr. Jones for his time and testimony, and told the court that he had no further questions. Deputy District Attorney Tom Barb, however, stepped forward and said that he had a few questions for the witness on his redirect examination.

 

 

Among the points he wanted to emphasize during his redirect was the fact that on page 3 of Dr. Boman’s report—the one that Baum had been reading aloud from and had stated “with possible echocardiograms every few years”—Barb had wanted to make certain that everyone, particularly the jury, understand that the recommendation in the report had used the word “possible” with regard to getting the future echocardiogram tests.

“So that’s not mandatory or doesn’t put up any red flags for anybody, does it?” Barb asked.

“Correct.”

“And in the next paragraph,
Suggest treadmill to evaluate for any arrhythmias with exercise.”

Barb asked Dr. Jones whether he had Kathy Augustine’s entire file with him. When Dr. Jones confirmed that he did, Barb asked him to hold it up so that the jury could see its size. It wasn’t particularly thick.

“That’s her entire file for fifteen-plus years?” Barb asked.

“Fifteen years, yes.”

“Is that what you would call a file of a patient who has various and sundry acute illnesses?” Barb asked, attempting to accentuate the size of the file.

“No.”

“It would be much thicker, wouldn’t it?”

“Yes.”

On recross-examination, defense attorney Alan Baum asked Dr. Jones if he could think of any reason “why a person presenting this entire history and evaluations that we have now considered should not have an echocardiogram or regularly monitor what could turn into a serious heart condition?”

“Are you asking what a reasonable person would do?” Dr. Jones asked. “I think that they would follow the recommendation of their physician.”

“Thank you.”

After Dr. Jones was excused, it still was unclear whether either side had proven the points that they had been trying to make. Had Kathy taken reasonable care of herself with regard to her health and the recommendations of her physicians? Had her physicians failed in their efforts to provide guidance to her, particularly regarding her heart issues? Or had Kathy failed by not heeding their recommendations? The only thing that seemed clear with regard to her heart’s health was that it hadn’t contributed to her death.

As the murder trial continued, the jury heard testimony from Genevieve Reiff, a human resources representative for Carson-Tahoe Regional Health Care, the same hospital where Chaz Higgs had worked. Reiff testified that she had processed Chaz’s paperwork at the time that he had been hired, including a direct deposit form. This had been done on June 12, 2006, she said, and had included the required blank voided check. It had the names Kathy Augustine and Chaz Higgs printed on it, showing that they apparently shared a joint account. However, Chaz had made a second request on July 7, 2006, the day prior to the emergency involving Kathy. For the new direct deposit request, Chaz had brought in a new blank and voided check. This one, however, did not have any names printed on it, she said. It was either a counter check, or was one that was associated with a brand-new account. Although the prosecution had been able to make the point that Chaz had opened a new bank account the day before he had allegedly injected Kathy with succinylcholine, Reiff had testified under cross-examination that there had been nothing unusual about his request. She confirmed that she processed a lot of paperwork, including that of people who got divorced and needed to switch bank accounts.

 

 

Later on during the afternoon of June 19, 2007, Madeline Montgomery took the witness stand to testify how she had determined that Kathy’s urine had contained succinylcholine. After her qualifications were stated for the record, Tom Barb offered her as an expert witness in the area of toxicology and she began describing how the FBI crime lab came to be involved with the case and the bureaucratic process that the evidence went through before it reached her. Under questioning from Barb, Montgomery carefully described the process she used to detect the presence of the drug in the samples using liquid chromatography and mass spectrometry, as outlined in Jenkins’s interrogation earlier.

“Would you ever expect succinylcholine in a live body or sample from a live body?” Barb asked.

“Not unless someone had been given succinylcholine in a medical situation,” Montgomery replied.

“So it’s not a natural thing that occurs in a live human being?”

“No.”

“Did you test for succinylmonocholine in the samples you received?”

“Yes, I did.”

“And did you find it?”

“I found succinylcholine and its breakdown product in the urine, yes.”

Examples of the charts and graphs, the results, in other words, of the liquid chromatography and the mass spectrometry processes were discussed and explained in detail, and shown to the jury. Montgomery explained that the procedure she followed in looking for the succinylmonocholine was one that the FBI crime lab had validated and used for a number of years, and it looked for only the breakdown product.

“Because typically we are looking at autopsy samples,” she explained, “and that’s the only chemical we would expect to find present because the succinylcholine itself is so unstable. So I had to do a little bit of research in the lab in order to figure out what succinylcholine itself would look like if it was run through this method that we use for the succinylmonocholine.”

Barb took Montgomery through a series of questions that led up to the procedures used in operating the machinery that does the analysis of the sample material being examined—in this case, urine. The first thing in the morning, she said, she ensures that the equipment is operating correctly by first using generic chemicals. If it is working as it should be, it will identify the test generic chemicals, the identification of which the lab technician is already aware. Afterward, she said, she then begins using the samples that she will be analyzing on any given day.

“Once I’m convinced it’s running . . . correctly,” she said, “we will do what we call shoot a blank through the instrument. I’ll just take a blank water or a blank solvent and run it through the instrument and verify that nothing is going to pop up at that time of interest to indicate that there might be some kind of contamination in the system. We call that a blank. That’s always run the first thing at the beginning of a run.

“Then I’ll have all these concentrated extracts from the urine samples that I’ve worked on that day,” Montgomery continued. “I will run . . . what we call a blank urine, urine from me or someone else in the lab who has not been exposed to succinylcholine that has been taken through the entire extraction procedure. I’ll run that blank urine extract through the instrument to verify that there was no contamination or problems with the extraction method that I did in the laboratory. Then I’ll either do another blank and then the urine from the patient, or I can do the patient’s urine next. Doesn’t matter since I’ve proven there is no contamination or no problems with the process so far. Then the final thing we do is we run a spiked sample, a urine sample that’s been spiked with the drug of interest and taken through the entire process to demonstrate what a positive sample would look like.”

Barb wanted to know how the lab technician could be sure that the patient’s urine hadn’t been contaminated during the process.

“Well, we—as I explained . . . run a negative urine sample right next to the patient’s urine sample (inside the machine), to verify that there is no contamination throughout the whole process. And then we introduce that blank urine sample to the instrument before the patient’s urine sample to indicate that there’s no contamination there. And that’s why . . . some may think it’s overkill, but that’s why we then go back to the sample again on a different day and rerun it just to make sure that nothing out of the ordinary occurred.”

“How many times did you run this patient’s urine?” Barb asked.

Montgomery responded that she ran the urine sample three times in her search for the presence of succinylcholine.

“And did you get the same result every time you ran this patient’s urine?”

“Yes. I found the drug there all three times.”

She also explained how she had tested Kathy’s blood plasma and tissue samples from the area of the alleged succinylcholine injection site, but had not found the drug in either, despite extensive testing.

During cross-examination, attorney David Houston began a line of questioning of which the answers, he hoped, would bring out any problems or mistakes that had occurred during the FBI’s testing of Kathy’s biological samples. It was his job to find a way, if possible, to cast doubt in the minds of the jurors on the FBI’s handling and testing of those samples.

“Miss Montgomery,” Houston said, “you would obviously never purposefully provide any kind of false or misleading result out of your lab, correct?”

“Absolutely,” she responded.

“How long ago was it that your laboratory was indicating that you cannot find succinylmonocholine absent the introduction of succinylcholine?” Houston asked. “Was that 2000 or 2003?”

“I don’t—I don’t know what you’re talking about.”

“Okay. Do you know what the Sybers case is?”

“I’m familiar with the Sybers case.”

“All right. In fact, Marc LeBeau is your supervisor, is he not?”

“Yes, he is.”

“And were you aware that Mr. LeBeau testified in the Sybers case?”

“Yes.”

“Were you aware that Mr. LeBeau had testified that succinylmonocholine does not exist in the body endogenously?”

“I wasn’t at the hearing,” Montgomery responded. “I did not witness the testimony, so I can’t—can’t answer that question.”

“What does ‘endogenously’ mean?”

“Endogenous are chemicals that are naturally in our body.”

“Did your laboratory receive any type of bulletin indicating to you that succinylmonocholine can exist in the body naturally?”

“Actually, our laboratory was the laboratory that reported that succinylmonocholine was found in autopsy samples from individuals who had not been exposed to the drug,” Montgomery said.

She confirmed that prior to the aforementioned, the FBI crime lab, as well as other labs, had believed that succinylmonocholine would not be found in the human body unless succinylcholine had been introduced to the bloodstream. Because she agreed that the science surrounding succinylcholine is an ever-evolving science, she had conducted her own test in the lab to show that succinylmonocholine is not normally present in urine samples. To her knowledge, that had never been done before.

Montgomery confirmed that the FBI crime laboratory did not have a standard operating procedure for the detection of succinylcholine, but that it did have a standard operating procedure for succinylmonocholine. She also confirmed that they were two different chemicals but shared similar characteristics, and that she had utilized the standard operating procedure for succinylmonocholine in this case but had adapted the procedure to look for succinylcholine.

“Now, when you say ‘adapted,’ have there been any peer-review published studies of your adaption of the test?” Houston asked.

“No, we have not published this method,” Montgomery responded. “I got permission from my supervisor after he reviewed the data that I had done on the succinylcholine itself before I ever looked at the urine in this case for succinylcholine.. . . He agreed that the testing I was doing was adequate and acceptable.”

“Acceptance of testing procedures is sometimes actually accompanied by peer review and journals, studies, articles, correct?”

“It can be.”

“Should be, shouldn’t it?”

“Well, it depends,” Montgomery answered. “The adaptations that were made to this method were not very different. And this method has never been published by us because we kind of borrowed it from another lab in the beginning, so it’s not our property.”

“Okay. So you’re using a test that you didn’t devise that’s not your property that’s never been peer reviewed or journaled, correct?”

“Our procedure has never been published, but it certainly has been peer reviewed within our laboratory.”

Houston next began exploring Montgomery’s qualifications in front of the jury, pointing out that she had been working in the field of forensic toxicology for eleven years and that her role in the field was that of a chemist. Although she explained that her title, the one that appeared on her paycheck, stated that she was a supervisor and a chemist, she pointed out that she was recognized by the FBI laboratory as a forensic examiner with an expertise in the area of forensic toxicology. Not yet satisfied, Houston wanted to know more about her title.

“What is the difference between an individual, for instance, like Dr. William Anderson or Chip Walls, that refers to themselves as a forensic toxicologist versus your title?” Houston asked.

“My title is just the title that the government gives me,” she answered. “All of us in the FBI laboratory are typically biologists, chemists, or physical scientists, so that’s . . . the area that my specialty fits into. I also manage the toxicology group within the . . . FBI laboratory. Right now, there’s three other people who I supervise on a day-to-day basis specifically in toxicology.”

Obviously having done his homework, Houston asked Montgomery about interference studies and what they were designed to accomplish.

“The interference study is designed to show that the method is unique for that specific drug,” Montgomery said.

“Okay. And you indicated that you used . . . ‘John Doe’ urine,” Houston pointed out. “Meaning you got urine from folks in the lab, right?”

“Yes.”

“And you got it from fifteen different people, true?”

“True.”

“And how many of those fifteen people that you received urine from had epinephrine in their system?”

“I’d be surprised if any of them did.”

“How about atropine?”

Houston was obviously going through the checklist of drugs that had been used on Kathy by paramedics and emergency department personnel at the hospital on the morning of July 8, 2007.

“I’d be surprised if any of them did as well.”

“How about heparin?”

“Probably none.”

“So the concept being the urine that you received was from fifteen very healthy drug-free individuals, correct?” Houston asked.

“Yes.”

“And one of the purposes of an interference study is to make certain that there’s no drug or other product in the urine, in this case, that could offer up a false positive by way of the testing, right?”

“Well, absolutely,” Montgomery responded. “But we’re also looking at natural components that we all have in our urine, things that we have from our diets. . . .”

“Sure. How many urines did you test as control samples that had as their characteristic epinephrine, atropine, heparin, and the people, say, have been in an emergency room, had died, and been resuscitated?”

“None met those criteria.”

“In fact, though, Kathy Augustine’s urine did possess all of those qualities. Were you aware of that?”