From that very first phone call, when Boyd Stephens had presented him with the facts of Tia’s case, Mac Holliday had been certain of the cause of the child’s illness. “Jesus, Boyd,” he had said, “somebody gave that kid an awful lot of bicarbonate!”
The inconsistencies in the medical records didn’t bother Holliday. As he had explained to Josh Thomas, when a child receives a huge load of sodium, this causes diarrhea. A large expansion of fluid is produced and then excreted, and this expanded phase is followed by a period of contraction—or dehydration.
“The body behaves in a very different way depending on whether it is in a state of expansion or contraction,” he told the district attorney during a pretrial conference. “Particularly in terms of urine output and electrolyte levels. A spot electrolyte sample taken at any particular point could make the results inconsistent depending on whether the sample was taken during the expansion, contraction, or rehydration period. But the essentials for deducing an exogenous administration of sodium are present and clear to anyone who has the least propensity for suspecting such things.” And Mac Holliday—unlike the Kaiser doctors who treated Tia—was trained to look at input.
Holliday came to the stand late on Tuesday afternoon, leaving only enough time for Josh to take him through his medical credentials. Speaking in his careful Virginia drawl, Holliday detailed his extensive background as a body fluid specialist. When direct examination was resumed on Thursday morning, Josh ran Holliday through testimony that was finally becoming repetitive.
After the morning recess, Holliday indicated specific points in Tia’s chart where he believed Tia must have had either an extraordinary loss of water or a gain of sodium into her body fluids.
Holliday pointed at the entry of Tia’s chart for October eleventh. “The concentration of sodium measured in two different samples here were three hundred fifteen and three hundred forty milliequivalents. Both of these are outside any experience I’ve had or could find. Now despite a very high replacement input of dilute solution intravenously, there was an increase in sodium concentration. There had to be an unexplained source of sodium entering the body and leaving the gastrointestinal tract simultaneously.”
Josh Thomas continued after lunch with more entries on the charts, and the same ground was covered until finally the judge spoke up in exasperation. “It seems to me this is cumulative. There has to be a limit,” he said.
Josh then turned to Mindy’s chart. Holliday drew the identical conclusions he had with Tia.
“I have no further questions, Your Honor,” Josh said.
ii
Dr. Holliday handled Collins’s cross-examination with casual ease. In an unusual reversal, the witness was perfectly relaxed, while the attorney grew frustrated and upset. The resulting exchanges were not without light moments. At one point, Collins referred to a chart entry that had been circled in green to denote an abnormal stool reading.
“Is it your understanding that the circling in green does not indicate that they’re abnormal?” Collins asked.
“No, that green circle indentifies them as stool, I believe,” Holliday replied.
“Well, how about these tests, which reads ‘stool sodium sixty-two’? You’ll observe there’s no green box around it.”
“That’s correct.”
“Did those figures appear to you more normal than the ones we looked at a moment ago that did have a green box around them?”
“Yes,” Holliday returned gently. “They’re more normal—but not because they don’t have a green box around them.” He smiled sweetly as a wisp of laughter sounded from the courtroom.
During recess, Ed Caldwell turned to his associate to offer condolence. “That Holliday’s a tough cookie with his hokey southern accent,” he said. “We’re not going to get anywhere with him.”
“Yeah,” Collins answered with a rueful grin.
He was not able to make a dent in Holliday’s self-confident armor for the rest of the afternoon, not even when he questioned the doctor about why the Kaiser doctors had not spotted sodium poisoning.
“I had a very different perspective and I had the benefit of hindsight,” Holliday said.
“But would you agree that other explanations may exist?” Collins persisted.
“I haven’t found one, and I have looked for it.”
“What about the one month of diarrhea Tia is reported to have suffered in Korea?”
“Whatever its cause, it would not explain the later findings,” answered Holliday imperturbably. And court was soon after adjourned for the day.
But something of significance had happened. During one of the recesses, a woman had approached Josh Thomas. Josh knew her because she was the head of the Victim-Witness Assistance program that was a service that ran out of his own office.
“I just happened to stop by here,” she told him, “and I recognize one of the jurors. I’m pretty sure he has been involved in a possible incest charge involving his young daughter. He goes to Parents United.”
“Oh, God, that’s all we need: a child molester on the jury!” Josh turned to Lindquist. “Ted, see what you can find out about this juror. We’re going to have to inform the defense and the judge about this. But I don’t know what position I want to take. My gut feeling is that we want him off the jury—that he’d sympathize with another child abuser.”
“I’ll see what I can dig up.”
The session on Good Friday was scheduled to last only until lunch. Monday was to be a holiday. On Friday morning Dr. Holliday took the stand once again and Al Collins resumed his cross-examination. He asked Holliday about the period directly before Tia’s death when her serum sodium continued to rise. How was this possible, Collins wanted to know, given that the child was comatose, on a respirator, and attended constantly by nursing staff?
“Either she had a reservoir of hypertonic solution—a solution where the proportion of salt is greater than occurs naturally in the body—occurring in her gastrointestinal tract, or she had some other solute there that was extracting water at a greater rate than it was excreting salt from the body.” Collins walked over to the defense table and picked up a copy of the preliminary hearing transcript that he had marked. Holliday’s answer had opened a small hole, Collins realized.
“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 poss
ibility?”
“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.
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