by Peter Elkind
With questionnaires in hand, the defense and prosecution teams retired to separate rooms to hash over their selections. Defense attorneys usually sought unsophisticated jurors with liberal political leanings; they reasoned such a background would prompt suspicion of the state and sympathy for the accused. Jones’s lawyers had a different strategy. Recognizing that an accused baby-killer was unlikely to receive much sympathy, they wanted a panel that was both intelligent and dispassionate—a group of nitpickers who would seize upon flaws in the prosecution’s technical evidence. Carnes described his ideal jury for this case as “twelve cold-blooded accountants.” Fulfilling that ideal was, of course, impossible. There weren’t many cold-blooded nitpickers in Williamson County. So the defense hoped to throw in a few jurors with discordant personalities. Conflicts within the group would boost their prospects for a hung jury.
The defense’s acceptance of educated jurors played right into Sutton’s hands. Seeking the opposite result, the DA felt he needed an intelligent jury. Sutton planned to present an extraordinarily complex case. He needed to educate the jurors—to school them in the effects of drugs, to make them believe in scientific tests, to persuade them of the wisdom of the medical experts he would call to the stand. Sutton believed it would take a bright group to digest such a case. He reasoned that a strong jury would be not skeptical of his evidence but impressed. Time would tell which side was correct.
Judge Carter, meanwhile, was amusing himself in his chambers by picking his own jury for the defense. Carter decided Genene’s ideal jury would contain only dummies; educated members of the panel would help others understand the evidence. So the first name he struck was that of the most attractive woman in the courtroom—a thirty-year-old microbiologist by the name of Ann Bradley.
The challenges by the two sides seated a panel of seven women and five men. Believing in their unusual jury strategy, the defense attorneys felt relatively pleased. But Ron Sutton was delighted. Eleven of the twelve jurors had reached high school, six had attended college, and one had a master’s degree. There was an electrical engineer, a production manager, a salesman, a store manager, an official with the state veterans’ commission, the business manager for a steelworkers union, two secretaries, and three housewives. And one microbiologist: Ann Bradley. All the jurors were married, most for many years. Happily for Sutton, prosecuting the death of a child, all but one were parents; they had thirty-four kids among them. The jurors’ ages ranged from thirty to sixty-six; only three were younger than fifty. Eleven of them listed religious affiliations. One taught Bible school, a second listed the Bible as the last book she had read, and a third was married to a minister. Ten jurors had served in the military or were married to veterans; the five men included a former air force colonel, a former marine major, and a former army intelligence captain. All who listed their political leanings described them as moderate or conservative. All the jurors were white.
As the dozen members of the panel settled into the jury box, a grizzled New York Times reporter named Wayne King surveyed the group from a wooden bench in the courtroom. King leaned over to Michael Pearson, a much younger reporter covering the trial for Harte-Hanks newspapers. “You know, Mike,” he said, “that’s the best jury I’ve seen since I left Mississippi.”
Twenty-Eight
On the first day of testimony, Ron Sutton rose in the darkness, at 5 A.M. The prosecution team had set up a command post at the Georgetown Inn, a one-story motel next to the interstate, with shag carpet and cheap paneling. Sutton had rented an entire bank of rooms for his entourage: his legal assistant, Nick Rothe, Joe Davis, Art Brogley, a Kerr County deputy sheriff, and assorted witnesses. They worked out of a large improvised conference room adjacent to Sutton’s quarters, where the beds had been replaced with a portable refrigerator, a giant coffeepot, work tables, and a typewriter. A half-dozen members of Petti McClellan’s family were bunking at the Georgetown Inn as well; her sisters, mother, and grandmother had all come up for the trial. Part of another wing of the building had been reserved for reporters and defense witnesses. The fifty-nine-room Georgetown Inn was the only major motel in town.
Dressed in an undershirt and Jockey shorts, Sutton went over his notes alone one more time. At 6 A.M., he woke up Rothe. The two men showered and donned suits, then rehearsed testimony with their first witnesses. Sutton felt both passion and pressure to put Genene Jones behind bars. With everyone around him focused on the trial, it seemed as though the whole world was watching; everything had to be right. When the time to head for the courthouse neared, Sutton stepped into his motel bathroom and threw up.
Inside the seventy-three-year-old courthouse, the scene was chaotic. Judge Carter’s chamber had seats for only seventy-two; with standing room, he could squeeze in perhaps one hundred ten. But far more than that number had lined up before the courtroom doors were unlocked. When the bailiff opened up, people scrambled for seats like cattle rushing through a squeeze chute; the overflow would have to wait outside for someone to leave. Carter had reserved one row for attorneys’ staff and a second for members of the principals’ families, but he refused to make any special arrangements for the press. The media soon learned to come early and wait in line. Ron Sutton was pleased when he arrived at the courthouse and saw the crush of spectators inside. He liked performing before a crowd.
Sutton plotted his case to open as dramatically as a TV movie. Things were going to get complicated; he needed to hook the jury fast. The prosecutor also believed his tale was too bizarre to feed the jury all at once. Eschewing the traditional opening argument, with its summary of what was to come, the DA instead spoke briefly, tantalizing the jurors. “I want you to see this story, this tragic story of the life and death of Chelsea McClellan, unfold before your own eyes and for your own ears,” he said. “Now, you are going to be wondering: Why? Why, why would something like this happen? Why, why, why?” Sutton noted that there was no legal requirement for the prosecution to prove a motive. “But I think we are going to be able to do so as these chapters of the sequence of events in the months of August and September 1982 unfold before you. And as the testimony begins to draw to a close, not only do I feel that you will be absolutely convinced that the state has proven these elements, but it will become inescapably clear as to the reason why, without me even having to tell you.”
The DA had carefully plotted his drama’s opening scene. He called it “Code Blue.” It began with a little girl unable to breathe, rushed by ambulance to the Sid Peterson emergency room on September 17, 1982. The child was Chelsea Ann McClellan, and she had come from Kathy Holland’s clinic.
Sutton’s first witness was Sharon Keith, the head nurse in the ER. Keith told the jury she had treated the toddler during a remarkably similar emergency that had struck twenty-four days earlier, also at Holland’s office. This time, Keith spotted two needle marks on Chelsea’s legs. Jones told her that the little girl had reacted badly to baby shots. Keith testified that she had never seen inoculations cause a child to stop breathing. Dr. Richard Mason then described his observations of Chelsea’s treatment in the emergency room. Mason saw Chelsea struggling clumsily to pull out her breathing tube, as though unable to coordinate her arms. Mason testified that the child’s behavior resembled that of patients emerging from the effects of succinylcholine. On cross-examination, the doctor acknowledged that other medical problems could produce such symptoms. But Sutton didn’t mind. He had planted the seed.
The district attorney called Steve Brown, the young ambulance driver, to take the jurors along on the transfer to San Antonio, Chelsea McClellan’s last ride. Brown, who was from Junction, Sutton’s hometown, had worked as a paramedic since high school. “I was driving along and everything seemed to be going real good, and I established that there was a lot of movement going on in the back. There was a lot of—well, you know, you heard things pushed, like boxes hit something, or something. And Genene Jones, I got eye contact in the rearview mirror, and she says, ‘Pull this son of a bitch
over!’ So I immediately pulled over to the right-hand side of the road.” Brown recounted the roadside rescue effort, the frantic, hopeless trip to the tiny hospital in Comfort, and the final scene in the emergency room.
Trixie Anthony, the 3–11 P.M. nursing supervisor at Sid Peterson, recalled Chelsea’s uneventful stay there after her first arrest, as well as the next occasion when she saw the child—in the hospital’s basement morgue. Anthony had the chore of identifying the body before its release to the Kerrville Funeral Home. Sutton handed the nurse a studio photograph of Chelsea dressed in a frilly eggshell-blue dress and matching bonnet; he asked her to identify the picture. Sutton offered the heartbreaking photo as evidence and passed it around the jury. Then Anthony described what she saw in the hospital basement. “She was in the morgue wrapped up in the blanket, and I took the blanket off her face and looked at her. And, of course, her eye were closed, and I saw her ringlets and her little gold earrings and her eyelashes, and it was the same child I had seen in the hospital. It was Chelsea.”
In the first day of testimony, Sutton had imprinted the haunting image of Chelsea’s death on the minds of the jurors, raised the specter of succinylcholine as its instrument, and placed Genene Jones close to the crime. Now came the second act in the DA’s drama. He had to follow the little girl’s body, to recount the gruesome indignities—embalming, burial, and exhumation—that ended with pieces of her tissue in a scientist’s laboratory in Sweden. The testimony was so graphic it would rout members of the McClellan family from the courtroom. It also sparked the first round of sparring over the cause of Chelsea’s demise.
Brookshire, who had settled down after his early jitters, was intent on proving that the child had died of natural causes. The private pathologists who conducted the autopsy had even put it in writing: Noting the subtle scarring in her brain stem, which governs the natural breathing mechanism, they had attributed her death to SIDS. Here was the true explanation of Chelsea’s death, Brookshire suggested to the jury on cross-examination. He pressed the private pathologist from Severance & Associates, Dr. Galbreath, to stand by his finding. But the doctor wriggled out of the trap. Galbreath said his SIDS finding was little more than a guess, a straw grasped in the absence of any other evidence, based on Dr. Kagen-Hallet’s discovery of brain scarring. Galbreath added that concealment of facts about Chelsea’s medical history—such as an injection of succinylcholine—could have produced an incorrect finding. Dr. DiMaio, the Bexar County medical examiner, called to testify about the exhumation, dismissed the SIDS explanation altogether. The coroner called SIDS a “wastepaper-basket diagnosis,” misused to explain deaths from many different causes. Virtually all true SIDS deaths occurred during the first six months of life, DiMaio said. Chelsea McClellan had been fifteen months old.
Kathleen Kagen-Hallet, the brain expert, would close the circle with a new hypothesis on Chelsea’s death. The subtle scarring she discovered on the child’s brain stem would have made her sensitive to respiratory insult, Kagen-Hallet would later testify. If Chelsea’s breathing was interrupted—as by a shot of succinylcholine—it might never resume.
“May it please the court,” announced Ron Sutton, as the second week of the trial opened, “the State calls Petti McClellan.” Sutton’s summons was a surprise. Prosecutors usually saved their most emotional testimony for the end, so it would still be simmering in the minds of jurors when they retired for deliberations. But in this case, Sutton had a vast amount of technical evidence yet to present. He wanted the jurors, before they sat through it, to understand the pain caused by this crime.
The timing of Petti’s appearance had been a surprise to the McClellans as well. Sutton had told Petti to show up in Georgetown the night before. There was no reason to bring Reid, he said; he just wanted to prepare her to testify at week’s end. But when Petti arrived, the DA told her he was putting her on the stand the next morning. Sutton had misled the McClellans because he figured giving Petti less time to worry about testifying would be easiest on her nerves. And he wanted to keep Reid out of the courtroom. Reid was so filled with loathing toward Jones—he talked about wanting to kill her—that he made Petti more upset. Sutton was also afraid of what Reid might do in Genene’s presence; an outburst could produce a mistrial. So Reid McClellan, who had wanted to be present, remained unaware of what was happening as his wife took the stand on Monday morning.
Months of living with a nightmare had taken their toll. Petti looked weary as Sutton led her through Chelsea’s fifteen months of life. Frightened and tearful from the start, Petti spoke so softly Sutton had to ask her repeatedly to speak up. Finally, they came to the final visit to Holland’s clinic, to the moment when Petti clutched her daughter in the crash room after Genene gave Chelsea the first injection.
“What did you notice about her eyes, Mrs. McClellan?” asked the district attorney.
“They were just looking at me,” said Petti. “They were funny.”
“Just looking at you?”
“…She was whimpering…”
“Whimpering?”
“Yes, like she was trying to say ‘Momma!’…”
“Trying to say ‘Momma’?”
“…And she couldn’t get it out.”
“Couldn’t get it out?”
“And her eyes—like, ‘Help me!’ And I didn’t know what to do. I told Genene that something was wrong, to do something.”
Sutton asked about Genene’s response.
“She said she was mad because she had to have a shot,” recalled Petti.
“What did Genene do after she said that?”
“Gave her another shot.”
And then?
“She went limp like a rag doll,” said the mother. “She was just like a rag doll.”
Sutton went on, to Chelsea’s final moments at the hospital in Comfort, after the emergency stop on the highway. Petti and Reid had followed the ambulance in their own car.
“Did you go in the hospital?” Sutton asked.
“When they took her out of the ambulance—” Petti began to break down.
“I am sorry, Mrs. McClellan,” said Sutton.
“…she was just laying there, just blue, and she was just laying there.”
Petti said she waited across the hall from the emergency room. Finally, her husband returned after speaking with the ambulance driver, Steve Brown.
“I guess Steve must have told him, because he kept saying, he kept saying that I had to get, you know, just in case, just prepare, just in case, because I didn’t know what was happening. I got real mad at him. I was so mad at him.” Petti’s eyes filled with tears. “I told him there was no way that Chelsea could die. There was no way. She wasn’t sick. She wasn’t sick!”
Sutton approached the child’s mother, now sobbing freely on the witness stand in the hushed courtroom. “Petti,” he said gently, “I would give anything if I didn’t have to do this.” Sutton showed her the color photograph. “Is this Chelsea?”
“Yes!” Petti shrieked.
A defense lawyer challenges such a witness at the peril of his own client. Despite the buffer of legal procedure and endless directives to stick to facts, it is emotion that governs most murder trials. And there is no surer way to alienate a jury than by treating a victim harshly. But the defense needed to prove that Chelsea’s death did not strike like a bolt from the blue. The child had a history of medical problems, dating back to her premature birth; Genene’s lawyers thought they could force Petti to acknowledge them. Treading gently, Burt Carnes reviewed her reports to doctors about her daughter’s various ailments. But Petti gave no ground. She explained each episode surely and insisted that Chelsea’s health had been excellent before her death. After several minutes of probing, Carnes gave up.
Before Judge John Carter now came his first pivotal decision: whether to permit the jury to hear from Bo Holmstedt, waiting at the Georgetown Inn—or to send the eminent doctor back to Stockholm without the opportunity to utter a word. The stakes were
great. Rejecting Holmstedt’s testimony would rob the prosecution of its only solid evidence that Genene Jones’s syringe contained not baby inoculations but deadly succinylcholine. That would leave Sutton and Rothe with a baldly circumstantial case—and vastly boost the prospect that Jones would walk free. Both sides had submitted written briefs on the question, but Carter knew the legal ground was uncertain. The national standard for determining admissibility of scientific evidence dated back sixty-one years, to a case called Frye v. United States, which ruled such evidence acceptable where it enjoyed “general acceptance” in its field. Did Holmstedt’s succinylcholine test meet this standard?
At sixty-four, the Swedish doctor boasted impeccable credentials. Recently retired as a professor at the world-famous Karolinska Institute, he belonged to the Royal Academy of Sciences—which selected recipients of the Nobel Prize—and served as president of the International Union of Toxicology. Holmstedt had published more than two hundred scholarly articles. Using extraordinarily sensitive computerized equipment, he had developed his test for succinylcholine over the previous three years, through studies on the embalmed tissue of rats. The amounts he was tracing were almost unimaginable, measured in billionths of a gram. While refining his technique, Holmstedt had had himself injected with succinylcholine during a routine surgical procedure. His test had been the subject of two articles in major toxicology journals and four papers at scholarly conferences.