An Almost Perfect Murder (21 page)

“I don’t know if I was aware of all of those qualities, no.”

Houston next went through the details of the process that Kathy Augustine’s biological samples had gone through from the time they were collected, both before and after her death, until they were received by Madeline Montgomery. The package had left Washoe County, Nevada, on July 20, 2006, via Federal Express, he pointed out, and was received by the FBI laboratory the following day. He pointed out that the package, although received by the FBI lab on July 21, hadn’t been received and inventoried by Montgomery until July 26. In the interim the package with frozen biological samples, he stressed, had gone into a refrigerator inside an FBI lab storage area. It was important, he said, for the samples to remain frozen, and Montgomery agreed.

“Well, if they’re not frozen, they undergo certain biochemical changes, true?” Houston asked.

“If the samples aren’t frozen, the drugs can break down and disappear over time,” Montgomery stated.

“And different effects could occur between the different drugs in the urine, correct?”

“It depends what drugs you’re talking about.”

“Exactly. And you haven’t done any studies on urine that has possessed epinephrine, atropine, heparin, that has come from a person who was dead for a bit of time and then revived, have you?”

“No, I have not.”

“So you have no real knowledge on what those drugs may or may not accomplish in the urine as far as biochemical changes, true?”

“No. But they wouldn’t make succinylcholine. I’ve analyzed enough urine to know that.”

“Ms. Montgomery, you’re a scientist . . . yet you’re making a claim to something that you have no knowledge of by any sort of testing. That’s not scientific purpose, is it?”

“Well, succinylcholine is a very unique molecule, and it’s rather large when we are talking about chemicals. So it’s not going to appear in a urine sample.”

“Right. You don’t know the chemical composition modifications that may occur by virtue of degradation of urine that contains the product of epinephrine, atropine, or heparin, correct?”

“I have not done that study, no.”

Houston brought out the fact that when Montgomery received the samples for inventory purposes, they were not frozen—despite the fact that they had presumably been packed in dry ice. His inference, of course, was that with the passage of time, nearly a week in this case, the samples had become thawed. He elicited responses from the witness that indicated that she had frozen the samples after she had unpacked the box that they had arrived in to prevent further degradation or biochemical changes to them, particularly since succinylcholine has been shown to be a very unstable drug and that freezing is the best way to keep it.

Based on Montgomery’s responses, Houston attempted to show the chain of custody of Kathy’s biological samples and inferred that they had been out of Montgomery’s control for a period of time. In response to his questions, she said that the samples had been kept frozen in the unit’s evidence freezer until she was ready to do the initial screening for succinylmonocholine on August 16, 2006. His concern appeared to be centered on the fact that because there were approximately twenty people working in her unit at the time the samples were stored in the evidence freezer, they may have been accessed by others besides Montgomery. However, Montgomery testified that the materials are sealed prior to being placed inside the evidence freezer so that no one else can have access to them; if someone did get into the materials, she would be able to tell because her seal would be broken. In this case, it was not.

Houston next questioned the witness about the tissue sample that had been removed from the area of the suspected injection site. Montgomery had begun working on that sample on September 18, 2006. The first thing that she did, she said, was to get the sample “as close to liquid as possible” by placing it inside a blender to make it homogenous.

“When you say ‘homogenous,’ do you mean you literally take the tissue, kind of grind it up, blend it up to create a liquid so that you can actually test it?” Houston asked.

“Yes. It’s . . . exactly like it sounds.”

When all of the testing had been done on the tissue samples, including samples taken not only from the area of the suspected injection site but also from Kathy’s right forearm and left wrist and forearm for use as control samples, all had turned up negative for the presence of succinylcholine. Similarly, Houston’s questioning brought out the fact that Montgomery’s testing of Kathy’s blood plasma samples had also turned up negative for the presence of succinylcholine.

During Montgomery’s lengthy testimony, Houston brought up the fact that there had been a power failure at the FBI lab during her testing of Kathy’s samples. She explained that she had been working with positive and negative control samples, as well as Kathy’s urine case samples, when the power failure had occurred on Friday, August 18, 2006. She had just finished the first, or screening test, and was working on the second test at the time of the power failure. Houston confirmed from questioning the witness that the negative control urine samples were those that hadn’t been “spiked” with any succinylcholine and that the positive control samples had been spiked with the drug. He also wanted to know what happened to the samples and the equipment during and after the power failure, and whether the FBI lab used backup generators.

“We do have backup generators,” Montgomery said. “But sometimes there’s a power surge that will interfere with the computers and the computers that talk to the instruments. So it’s not . . . a hundred percent foolproof.”

He wanted to verify whether or not the machine that processes the samples was a computer as well.

“Well, it is a computer,” she said. “And that’s why with the power issues, I stopped and restarted.”

“And, of course, you had the . . . tech come out and make sure the machine was okay, right?”

“I don’t recall,” she said. “I may have done the instrument checks myself.”

In response to Houston’s question regarding whether Montgomery was a liquid chromatography/mass spectrometry machine technician or not, she said that she was not, but she added that she was fully capable to operate the equipment.

“Well, I can drive my car, but I can’t rebuild the engine,” Houston retorted. “Are you a technician?”

“I’m not a technician, but I have a lot of training in liquid chromatography-mass spectrometry. We do have people in our laboratory that will help us service instruments, but I have as much experience as most of them with the equipment that we have, and am certainly qualified to fix the instruments,” Montgomery said.

“Okay. And the short answer is you’re not certified as a technician concerning that particular piece of equipment, correct?”

“No one in our lab is officially certified.”

“That’s why they have people that are, true?”

“Well, if there are big problems, we call someone from the instrument company, but that’s very unusual.”

“Well, sometimes you don’t know there’s a big problem until somebody points out a big mistake, correct?”

She explained that was why they performed quality assurance and quality control in the lab every day, ran known samples of drugs on the instruments, as well as the ana-lytes of interest to prove that the instrument was working properly.

Houston went back to the power failure to drive home the point that the testing of the samples hadn’t resumed until the following week, on Monday, August 21, 2006, after the samples had sat inside the machine all weekend.

“So during that three days, what do you do with all those positive, negative, and Miss Augustine’s samples?” Houston asked.

“They would either be on the instrument or in a refrigerator.”

“On the instrument? You wouldn’t remove them and place them in a secure location?”

“Well, I don’t recall if this was an incident that happened after I had already gone for the day. The instruments can work—their auto samplers can work way past five o’clock. So I don’t know if I was there . . . or not when the power failure occurred.”

“How long does it take to test the urine to determine whether or not it has succinylmonocholine or succinylcholine?”

“From beginning to end?”

“Well, once you stick it on the machine.”

“The run itself is less than . . . half an hour for the mono-choline. When we look for the succinylcholine, one run takes . . . about an hour.... We end up with a lot of samples . . . the blank urine sample, the patient’s sample, and the control samples, so it very well can be several hours and go past the end of the workday,” Montgomery said.

Before finishing up with the witness, Houston wanted to get across to the jury the fact that the succinylcholine used by the FBI lab to make their positive control samples was from a bag of a dry, powdered form of the drug that had sat on a shelf in Montgomery’s unit since its purchase in the late 1990s. When asked about the documentation for the succinylcholine that Montgomery had used for the testing, she testified that all of the drugs that they purchased were certified by an outside company. They were again certified, she said, every time they were used by lab personnel who ran them through the testing process to ensure that they were what they were supposed to be.

It was difficult to tell whether or not Houston’s chipping away at the FBI lab’s testing methods had effectively shot any holes in the prosecution’s case against Chaz Higgs in the eyes of the jury, but he had certainly made an exhaustive attempt at discrediting their efforts. No one, however, was ready to second-guess the jury at this point in the trial.

The next witness called by the state was George Reade, the communications supervisor for REMSA that had taken the 911 call from Chaz Higgs early on the morning of July 8, 2006. In response to questions asked by Christopher Hicks, Reade explained his job duties and told of how in a typical day he might receive emergency calls involving traffic accidents, cardiac arrests, violent crimes, and people who are very sick and need help. He explained how he typically worked three days one week and then four days the next, in an alternating fashion, with overtime sometimes in between. He said that out of the thousands of telephone calls he had taken since working in that career field, the one from Chaz Higgs that morning in which he had exhibited such a high degree of calmness was the exception rather than the rule. He said that in his line of work, he had been able to get a feel for how people react in an emergency situation.

“Have you gotten a feel for what a person is like when they’re making a call involving an emergency with a loved one?” Hicks asked, putting an edge of clarification on his question that he hoped would show in Reade’s response.

“Yes, I have,” Reade answered with emphasis.

“You seem to put an exclamation point on that answer,” Hicks said. “Do you wish to expand on that?”

“There is typically a great sense of urgency,” Reade said. “Pretty much a panic at different levels, depending on how certain people handle different situations. But usually, yeah, there’s usually a great sense of urgency when a loved one is injured.”

Reade described the phone call from Chaz to the jury in which he had reported that his wife was not breathing and that he was performing CPR on her. He explained that among the characteristics that he had observed over the years during such calls were pauses in between the conversation. Those pauses, he said, were present when the person giving CPR was giving breaths and chest compressions to the person who is down. Sometimes, he said, the person giving CPR can sound as if they are out of breath—depending upon how long they’ve been administering CPR.

“Is it common to be able to hear them doing CPR?” Hicks asked.

“Yes.”

“In this particular call . . . did it sound like the person who had made that call was administering CPR as they claimed?”

“It did not sound so,” Reade said.

“You also indicated that typically phone calls involving a loved one are accompanied by a great sense of urgency. . . . Did you sense that urgency in this particular call?”

“I did not,” Reade said.

Hicks then played the 911 call for the jury to hear.

“Mr. Reade,” Hicks asked a few minutes later after the tape had finished playing, “is it common in your experience for a person to—a loved one in an emergency situation to give specific directions to their house?”

“Usually, no.... I can’t recall taking a call where they did,” Reade said.

“Do paramedics have maps, GPS, and stuff like that to make sure they get to the right residence?”

“We have all of it,” he said.

Hicks wanted to know if Chaz’s demeanor that morning, while on the phone, was consistent with 911 calls that were made when a loved one was involved. Reade explained that Chaz was very calm during the situation when most other people would not be. He said that conversation with Chaz seemed “very lengthy”; normally, when someone is doing CPR, it is very brief because they are going back to the person who is down to continue the CPR on them.

 

 

During his cross-examination of Reade, David Houston confirmed that Reade did not know Chaz Higgs at all. Although Chaz had told him that he was a critical care nurse, Reade had no idea that Chaz had spent fifteen years in the military as a medic. Houston’s line of questioning clearly was intended to show that people who work in emergency situations typically remain calm.

“Do you customarily break down or show emotion when you take calls?” Houston asked.

“No, I don’t say that I do,” Reade replied.

“And, in fact, your training is what causes you to be professional in your job, true?”

“That is correct.”

“And do you think you rely on that training so that you remain calm?”

“Yes, I do.”

“And most of the time you spend effort and words telling people, ‘Calm down. Calm down. Give me the address,’ things like that, right?”

“That is correct.”

Houston confirmed through Reade’s testimony that it is more effective to be able to remain calm to provide the information to the dispatcher in order to get treatment for the person who needs it. He also effectively got the message across that if someone was trying to delay treatment for a loved one, he should simply not communicate well to the dispatcher. At one point, Houston elicited testimony from Reade that confirmed that the American Heart Association guidelines indicate that CPR should be administered for one to two minutes prior to making the emergency phone call.

Houston also elicited testimony from Reade that indicated that Chaz had repeatedly said, “I’ve got to stop and give CPR,” and had placed the phone down several times so that he could presumably perform CPR on Kathy. Reade conceded that he did not know how Chaz would normally react in a crisis situation.

“As an ER ICU nurse, would you expect him to lose control in a crisis?” Houston asked.

“I would really expect anybody to, but—” Reade said.

“Okay. So the idea is you’re not supposed to lose control in a crisis, right?”

“Ideally, yes.”

“And if you have twenty years of training, ideally might actually manifest itself, wouldn’t you agree?”

“That is a tough question,” Reade responded. “When it comes to loved ones, it tends to be a little different.”

“Sure, for some people.... Everybody is different.”

“Yes, they are.”

“You certainly wouldn’t want to reach any judgments based upon somebody you don’t even know, right?”

“Of course not,” Reade said.

After a brief redirect from the prosecution and a just as brief recross-examination from the defense, in which little more than accentuating what had already been said was accomplished, Judge Kosach recessed the trial for the evening. He admonished the jury not to discuss the case among themselves or anyone else, and not to read, look at, or listen to any news media accounts of the case.