by Peter Elkind
Sutton, in fact, was plotting precisely the strategy the defense feared. He had already composed his first question for cross-examination. “Miss Jones,” the DA intended to ask, “is it not a fact that you’re a liar?” To the nurse’s legal team, the scenario was vivid: Sutton would ravage Genene’s credibility, and, equally important, he would prod her into a fury. The defense lawyers had seen how Genene looked when she lost her temper. Her mouth twisted into a sneer, and her eyes lit up with hate. She had already shown flashes of this behavior in court when listening to unfriendly testimony. More than any single fact or witness, such a reaction would persuade the jurors that Jones was indeed capable of murder. The defense attorneys could gamble: They could work on Genene, make her promise to keep cool, and hold their collective breath as they turned her over to Sutton. But the nurse had rarely followed her lawyers’ advice. Besides, putting her on the stand would represent a wholesale departure from their conservative strategy of trying to hang the jury. In the end, their decision was governed by a simple truth: Genene Jones’s lawyers could not trust their client. They did not want her to testify.
Genene, of course, was eager to slug it out with Sutton. This would be High Noon, the ultimate showdown with the man who had ruined her life. The press was already brimming with speculation about whether Genene would take the stand. Under Texas law, a defendant who wanted to testify was always free to do so—even if that meant rejecting her lawyers’ advice. Genene’s attorneys would have to persuade the nurse that it would be a mistake for her to testify. Sutton would goad her, they told Genene bluntly, and he would surely get her goat. For once the nurse accepted their recommendation.
With the drama’s climactic scene suddenly excised from the script, Genene Jones’s murder trial moved rapidly toward its conclusion. The defense devoted its energies to buttressing the notion that Chelsea had died of natural causes. Debbie Sultenfuss took the stand to tell the jurors that she had never seen her friend administer succinylcholine. But under cross-examination, Sultenfuss admitted that she and Genene had conducted their own research on the drug after seeing it used at Medical Center Hospital. Sultenfuss also acknowledged that she and Jones had discussed opening a pediatric ICU at Sid Peterson. But she insisted the idea had originated with Dr. Holland, not Genene.
The defense put forth a parade of medical experts—a nurse, two toxicologists, and a pediatric neurologist—to challenge those who had testified for the prosecution. Angela Clark, a University of Texas nursing professor, went through a painstaking review of Chelsea’s medical history. Brookshire wanted to show that Chelsea’s history of hospitalizations proved she was seriously ill even before her death. But when Sutton read aloud notes from doctors that described Chelsea’s recovery, the nursing professor looked surprised. “That sounds like a much healthier description than the notes that I was reviewing,” she said. Under Sutton’s prodding, Clark admitted that she had searched Chelsea’s records for symptoms of illness but not signs of recovery.
To question the succinylcholine test, Brookshire called toxicologist Joseph Balkon. An associate professor at St. John’s University, Balkon had phoned Brookshire after hearing news reports about the trial after it was already under way; Balkon informed the lawyer that he had developed his own technique for detecting succinylcholine. After confirming that Balkon was not a quack—the defense had received dozens of crank calls—Brookshire had invited Balkon to testify, at a consulting fee of $150 an hour. The toxicologist told the jurors about his rival technique, but he was unable to pronounce Holmstedt’s approach invalid; he merely interpreted the prosecution results as inconclusive, remarking, “We would have to say, you know, no cigar in terms of confirmation.” Such flip responses helped make Balkon a flawed witness. Juries liked experts to have gray hair and a regal bearing. This toxicologist was young and abrasive, sprinkled wisecracks into his testimony, and often wandered off into extended digressions. He also spoke in a distinct New York accent. A pale challenge indeed, thought Sutton, to the distinguished Dr. Holmstedt.
“Did you happen to bring the results of your testing procedures or test results on tissue of Chelsea McClellan?” the DA asked the toxicologist on cross-examination.
When Balkon admitted that he had not personally analyzed the child’s tissue, Sutton lifted his eyebrows in mock surprise. “Don’t you think it would be important,” he demanded, his voice dripping with sarcasm, “if you are such an international expert in this, having published in an international journal, that you would run your own tests, rather than come in here and criticize Dr. Rieders’ or Holmstedt’s testing procedures?”
Balkon said he had lacked the time to test Chelsea’s tissue, but the answer sounded lame. The DA swarmed all over the defense expert. Balkon acknowledged that his own laboratory lacked the equipment to conduct a succinylcholine test and that he had never attempted the procedure that Holmstedt and Rieders had performed.
In presenting the evidence against Genene Jones, the prosecution had called forty-four witnesses and introduced sixty-four exhibits. The nurse’s attorneys were betting heavily on their efforts to discredit the state testimony. After summoning only seven witnesses, they rested their case.
Ron Sutton was disappointed not to have a crack at Genene Jones but pleased to discover that the defense had no other surprises to offer. Sutton felt confident that he had already countered the arguments the defense witnesses had made. The DA also believed he had triumphed in the battle of experts: The prosecution witnesses had been more numerous, more eminent, and more persuasive. And they had yielded little ground under challenge. Sutton and Rothe decided to devote rebuttal to eliminating any doubts that lingered about the succinylcholine test. First, the prosecutors read to the jury testimony that had been given earlier outside its presence by Dr. Holmstedt and Dr. Rieders. The testimony revealed that after Rieders had finished the testing on Chelsea’s tissue and departed from Stockholm, Holmstedt had confirmed the results by running the tests again on his own. Next, the prosecutors called their only new witness: Dr. James Garriott, the chief toxicologist in the Bexar County medical examiner’s office. Garriott affirmed to the jurors that the tests by Holmstedt and Rieders represented “conclusive” evidence that there was succinylcholine in the body of Chelsea McClellan.
Tuesday, February 14, was Valentine’s Day and the birthday of Petti McClellan. But there was to be no celebration, for it was also the twenty-first day of Genene Jones’s murder trial. Late that afternoon, testimony at last came to an end. Before sending the jurors home, Judge Carter advised them to bring an overnight bag and toothbrush to court the next morning. After hearing final arguments, the jurors would begin deliberations immediately and remain sequestered until they reached a verdict.
With testimony over, the rule that barred witnesses from sitting in on the trial was no longer in effect. The judge had at last moved the trial into a much larger courtroom, across from his own. Among the more than two hundred people who jammed it on the morning of February 15 were the mothers of three children Genene Jones was accused of harming. Reid McClellan, barred until the final day by order of Ron Sutton, was there too, sitting beside his wife, Petti. The defendant arrived at the courthouse wearing a choice item from her new wardrobe, a brown striped dress. Genene appeared relaxed and confident; it had not taken her long to recover from the shock of Kathy Holland’s testimony.
Under Texas law, the state went first in closing arguments, the defense followed, and the state had the final word. By agreement, each side would have two hours. Ron Sutton decided to let his young part-time assistant, Scott Monroe, briefly introduce the prosecution argument; Monroe had been griping about his limited role in the trial. Then Nick Rothe would summarize the testimony the jurors had heard over the previous five weeks. Sutton would speak last, after the defense had taken its turn.
Nick Rothe rose from his seat at 9:30 A.M. The canny San Antonio lawyer had the task of reviewing the testimony, and there was much ground to cover. But he knew it was the e
ntire puzzle, not a single piece, that would send Genene Jones to prison. The defense could nit-pick at an individual witness, perhaps even raise doubts about the cause of any one child’s sudden arrest. But it would be hard for jurors to dismiss the big picture, the pattern of emergencies—or the emotional power of a helpless baby’s death. To put the nurse behind bars, they had to keep that fresh before the jury, to make sure the weeks of numbing testimony did not obscure the point of this ordeal.
“What we need to do is to get back to what this is all about,” Rothe told the jury. “It is about a dead little girl, this one, little Chelsea McClellan.” Rothe held the child’s portrait before the jurors’ eyes. “It is about somebody else too,” he said, turning toward the defendant with evident disgust—“a nurse, a self-proclaimed ‘pediatric clinician.’” Rothe recounted Chelsea’s first visit to Kathy Holland’s office on August 24, the day after the clinic opened. “She had the misfortune to meet the nurse when she had the sniffles. That child, that baby, is alone with the nurse, and what is the next thing that happens?
“Down she goes!” shouted Rothe. “With what? Seizure!” The prosecutor paused, shifting to a tone of foreboding. “I have heard that word an awful lot. Like an epidemic of seizures running through the Hill Country of Texas in Kerrville—strangely enough, located only in the immediate vicinity of the nurse.” Rothe left the defendant’s name unspoken, keeping her a vague, evil presence. “That was the first one. And that was to be a portent of something horrible happening in Kerr County—because it didn’t stop.”
As Rothe began to speak of the events of September 17, his voice quavered with emotion. Rothe had never worked harder on a case; now he was close to exhaustion, and he didn’t mind the jurors feeling his outrage. “Immunization shots,” he mused. “At this point the sheer, audacious bravado of this nurse becomes very clear.” The prosecutor held aloft an empty hypodermic needle, reenacting the chilling scene after the nurse gave Chelsea, sitting in Petti’s lap, the first injection. “The child starts to tremble and shake, okay? And the mother said, ‘There is something wrong with her!’ And what does the nurse say? ‘Oh, she is just mad. She is just a mad kid.’
“She gets a second needle. Wham! Then what happens?” Chelsea was limp as a rag doll, he said. Rothe turned to the poster-sized calendars with each arrest marked in red. Look at the big picture; look at the pattern. “There are rag dolls all over those calendars because they are all the same,” he declared. With one exception: the week Genene was in the hospital. “No rag dolls that week because the nurse wasn’t there.”
And on the day the nurse returned to work?
“Chelsea McClellan! Down she goes! Dead!”
Rothe reviewed the other arrests, punctuating each with the cry: Down she goes! “The whole thing is frightening. It is bizarre. It is terrible that some human being would do that to a baby, but worse, to babies—not one, but one after the other after the other.” Rothe turned, pointed his finger at the defense table, and invoked the name of the accused for the first time. “The nurse is right there! The nurse that killed that baby is right there, and her name is Genene Jones!”
Speaking softly now, Rothe said he always struggled to find the right words to offer a jury. “Sometimes you just can’t find the words, so you look other places and see that somebody else one time maybe said something that fits here. And I did that.” The prosecutor looked down at his notes, scribbled late the night before from a borrowed Bible, and read from the Book of Matthew: “But whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck and that he were drowned in the depth of the sea.
“Ladies and gentlemen of the jury,” said Rothe, “what I would suggest to you, after you review the evidence and read the charge and measure the proof, is that justice is what we are here for. And justice is ofttimes harsh. This baby being dead is awfully harsh and irrevocable.” Rothe faced the defendant, stared into her eyes, and preached. “But I would ask you by your verdict to tie a millstone, if you will, of justice around this woman’s neck and say by your verdict: guilty of the offense of murder of Chelsea McClellan.”
Final argument was normally Burt Carnes’s favorite part of trial. On this morning, however, ridden with fever and fatigue, the defense attorney felt lousy. A few days earlier, he had almost passed out in court while questioning a witness. Now he had two hours to speak, and he entertained doubts that he could stand up that long. Carnes knew that most in this courtroom mob wouldn’t mind a bit if he fell flat on his face.
In natural contrast to the state, the defense wanted the jurors to pay attention to detail, to scrutinize not only every piece of the puzzle but the cracks that lay between them. Carnes praised the jurors for their attentiveness and frankly admitted that the defense was counting on just that. But he was already worried. An experienced trial lawyer could read jurors like a newspaper. The panel had absorbed Rothe’s oration; its attention to Carnes’s first words seemed merely cursory and polite. Anxious to capture the jurors’ minds, Carnes swarmed into an attack on the prosecution. Composed as much of rhetoric as of fact, it was to be an argument that echoed the paranoid reasoning of the defendant.
The state had no interest in the truth about Chelsea McClellan, Carnes declared. “Obsessed” and “desperate,” the prosecutors were throwing up a smoke screen with their testimony about the other children. “They are trying to stampede you,” warned Carnes. The defendant was a scapegoat, victimized because she was aggressive and bossy and stepped on people’s toes. “If they have proven anything about Genene Jones, it may be that she practiced a little medicine without a license.” But that didn’t make her a murderer.
From the beginning, the defense’s first line of argument was that Chelsea McClellan had died from natural causes, not succinylcholine. Its secondary pitch was that if something had gone on, Genene had not done it. Although the arguments were mutually exclusive, Carnes argued both, in the desperate hope that the jurors would respond to one. The notion that someone else was responsible required an alternative culprit. Carnes offered them Kathy Holland, sitting that very day in the courtroom. Suddenly the doctor recalled all the children going limp, noted Carnes. Why had she not used that word in her medical records back in August and September of 1982? Why had she instead consistently described seizures—impossible, he insisted, with the administration of succinylcholine.
Carnes knew he had to address the gleaming red ink on the prosecution’s giant calendars, reflecting the string of arrests. He told the jurors he was unsure what had happened but had some ideas. “I think there is a high possibility that we are dealing with a young doctor who is in her first clinic situation, just out of residency, a residency served in a hospital, where you are used to seeing very serious children in serious trouble, and who had a tendency to push the panic button and maybe overreacted—and possibly overtreated…
“Maybe it is total incompetence on Dr. Holland’s part.” The lawyer’s voice reeked with insinuation as he offered a more sinister possibility. “Maybe she was doing something that was just flat wrong that caused the problems.” As for the prosecution’s explanation of the defendant’s motive, it was “absurd,” declared Carnes. “You are going to go out and harm these children to guarantee that they are going to get a pediatric ICU unit?” But Holland, on the other hand…Carnes’s speculation became specific. After Chelsea’s death, “Dr. Holland had to have been feeling the heat. To me it is a possibility that at that point Dr. Holland made the decision it was time to cover herself. It is a possibility that third vial of Anectine was Dr. Holland’s vial, and she punctured it, she withdrew the succinylcholine, she filled it back up with saline, she planted it, and waited for Genene to do her next weekly inventory and all of a sudden find it.”
Now Carnes backtracked, again taking up the claim that Chelsea had not died of succinylcholine in the first place. Even assuming the child had received the drug on September 17 in Holland’s clinic, she had
not been loaded into the ambulance for transfer to San Antonio until almost two hours later. The drug’s effects would have worn off; the shots in the office couldn’t have killed the baby. As for the testimony of DeAnna Armour—who said she had seen Genene inject Chelsea in the thigh just before the child was loaded into the ambulance—“that didn’t happen,” Carnes declared. “You know it didn’t happen.”
With only thirty minutes of his two hours remaining, Carnes shifted to a sympathetic tone for the first time. “Ladies and gentlemen, it is a sad fact that a pretty fifteen-month-old child passed away on September 17, 1982. And it is a shame. But there is not a thing in the world that you, or I, or anybody else can do to bring that child back. And it doesn’t justify trying to railroad somebody on the kind of evidence the state has brought to you today or in the past four weeks.”
For the next half hour, the exhausted defense attorney wandered through an attack on the state’s experts. Only when the judge advised that he had but a single minute remaining did Carnes return to his central theme. Consider motives, he pleaded. “If anybody has a motive for misrepresenting the truth, it is Dr. Kathy Holland. I think it is clear to you she is trying to cover her tracks. She is hanging Genene Jones out there to dry and letting her try to face the heat because of Dr. Holland’s own incompetence or possible intentional wrongdoing.”
Carnes raced toward the finish line, in a jumble of mixed metaphors. “We talked about the presumption of innocence. Mr. Sutton promised you he was going to chip away at that presumption of innocence until there wasn’t anything left and you reached the inescapable conclusion that Genene Jones is guilty. I am going to tell you they spent four and a half weeks trying to cover it up. They have thrown blankets at it. They have put up smoke screens all around it. They have done everything in their power to direct your attention away from the facts of this case surrounding the death of Chelsea McClellan, under all that red lettering on the calendar, in an attempt to hide the truth from you, and confuse you, and panic you, and bully you into returning a verdict of guilty. Ladies and gentlemen, that presumption of innocence remains inviolate. It is still there. They have not dented it.”