Judge Ponsor broke for lunch.
When court resumed an hour later, Hoose wanted to clear up an error, he said, in Kirchhoffer’s earlier testimony. The doctor had testified that he was being paid one hundred and fifty dollars an hour for his work in the case, but it was, Hoose told the court, two hundred dollars an hour.
As Kirchhoffer went through each of the victims’ medical charts, he continually repeated his theory that each vet had died of natural causes, not epinephrine poisoning. Even those patients with healthy hearts, Kirchhoffer opined, could have died of sudden cardiac death, mainly, he said, because of the medications they were on at the time of their deaths. He cited alcohol abuse, smoking and a poor diet as major factors in all of the deaths. But not an overdose of epinephrine.
It was a solid argument from someone who, like Dr. Rocco, appeared to know what he was talking about. Still, for the jury the bottom line was, who was the more credible witness?
Bill Welch was about to answer that question.
Several days before Welch knew he was going to cross-examine Dr. Kirchhoffer, he decided, for the hell of it, to key Kirchhoffer’s name into an Internet search engine. A minute later, Welch was shocked to discover Kirchhoffer had received some type of “letter of reprimand” from the FDA regarding one of his clinical trials, a study he had conducted at Baystate Medical Center in 1995.
Welch, of course, was curious.
To obtain a copy of the letter, the Web site said, “send a check for fifty dollars.”
So Welch went one better: He sent the check, along with a subpoena for the entire file.
On the morning of February 16, Welch first questioned how Kirchhoffer had come to his conclusions regarding the deaths in question.
Kirchhoffer admitted that, in determining causes of death for the patients, he never considered that Gilbert had been one of the nurses giving out medicines. Welch contended that some of the patients may have died from the medications they were on—but it was the defendant who had administered the meds.
Welch then wanted to know how Kirchhoffer could have come to a definitive conclusion as to how Thomas Callahan had died if he hadn’t taken into account all the factors involved in his death. Further, Welch suggested, Kirchhoffer had based his findings on medical records that contained entries made by Gilbert herself, but didn’t take into account that she had either falsified some of the records or failed to include relevant information.
“But is it fair to say that . . . you’re relying upon something,” Welch asked in a sarcastic tone, flipping through Callahan’s medical file, “in this particular progress note written by the defendant, isn’t that correct?”
“That’s correct,” Kirchhoffer said.
“And it’s also accurate that we don’t see the conversation [between Gilbert and Callahan] anywhere in this particular progress note, isn’t that true?”
“That’s true.”
“We don’t get to see what the rhythm was before [his medical emergency] and whether it truly converted or how it evolved, isn’t that correct?”
“That’s correct.”
“My recollection of your testimony with respect to Mr. Callahan was that this particular chart offered you very little significance, is that true?”
“That’s correct.”
Throughout the morning, Welch continued to hammer Kirchhoffer about how he had reviewed the medical records of the victims with blinders on. For example, how he failed time and again to take into account all of the evidence from all of the doctors involved, but instead based his findings on only certain sections of the medical records. It had been well documented that Callahan had shouted, “I think I’m going to die” shortly before his code, but Kirchhoffer said he didn’t find any importance in that declaration.
“Regarding Callahan’s episode, were you advised that three 1:1000 epinephrine ampoules were found in his—in the needle disposal bucket in the ICU sometime after this event?”
“I’ve heard rumors to that effect.”
“But you have not received any direct information to that effect?”
“No, that’s not in the medical chart.”
At 12:57, Ponsor let the jury have a break. They looked tired, moving around and slouching in their seats while Kirchhoffer testified. It was clear many of them had heard enough from the doctor. As his testimony dragged on, one juror later said Kirchhoffer began to sound like he was “full of shit.” He kept trying to give the impression that he knew more than he did.
It had been a long three months since opening arguments, and many of the jurors had changed remarkably. Scott Stetz, at twenty, the youngest juror, had gained nearly fifty pounds since the start of the trial, and others were beginning to complain about how grueling the whole process had become.
By two o’clock, everyone was back in court listening to Welch as he continued with his grilling of Dr. Kirchhoffer.
He first outlined the many reasons why Kenny Cutting should have lived.
“And Mr. Cutting had a normal heart?”
“That’s correct.”
After a few more medical questions regarding Cutting’s condition at the time of his death, Welch walked over to where Ariane Vuono was sitting, leaned down, and whispered, “What do you think . . . now?”
“Go for it,” Vuono said.
“Doctor, during the course of your direct exanimation, you were [asked] about a peer review function that you performed, is that right?”
“Yes.”
“And you were also asked about quality assurance tasks that you performed, correct?”
Obviously uncomfortable, Kirchhoffer began to shift in his seat.
“Yes,” he said after a brief pause.
“And you indicated that you approached this case in somewhat of the same way, sort of doing a peer review of these medical files, correct?”
“Yes.”
Welch had come from the old school of law where litigation was all about information—possessing it, controlling it, managing it, and using it effectively.
It turned out that Kirchhoffer had been in charge of a government-funded study involving the use of pacemakers, but had received a letter from the FDA in 1995 warning him about “his failure to thoroughly document [the study].” One of his patients involved in the study, Welch found out through the subpoena, had died, and Kirchhoffer never knew about it because he wasn’t keeping tabs on the study the way he was supposed to. He had also been reprimanded for putting the wrong pacemaker into a patient, for pre-recording the results of tests into charts, and for not having the appropriate documentation—like rhythm strips, for example—to support some of his data.
“Did there come a point in time in the fall of 1995 when you received an FDA warning letter concerning poor documentation of your cardiovascular studies”
“Yes.”
David Hoose began to slouch in his chair as if someone had let the air of him. Kirchhoffer put his head down for a moment, looked up at Welch, and began shaking his head, slowly.
“And you were criticized by the FDA for not documenting the death of a patient in one of your studies, isn’t that correct?”
“No. I was criticized for not sending a copy of the documentation to the IRB. I had sent a copy directly to the coordinating center, and the copy that was supposed to go to the IRB didn’t go.”
“And when you say ‘IRB,’ that is the Institutional Research Board of the Baystate Medical Center?”
“Yes.”
“So you had no time frame at Baystate . . . via documentation that a patient had died in one of your cardiovascular studies?”
“That’s correct.”
“The FDA warning letter,” Welch continued, “wasn’t limited solely to not documenting the death of the patient, isn’t that correct?”
“You know,” Kirchhoffer said mockingly, “I don’t have the FDA warning letter in front of me, and I don’t have it memorized.”
“Well,” Welch said, smiling, “let me see if I can help
you. It also had to do with not documenting the accidental implantation of an experimental pacemaker in a patient and then subsequent explanation?”
Kirchhoffer became incensed. He said it had to do with the wiring, not the pacemaker itself.
For the next few minutes, in a heated exchange, Welch went toe-to-toe with Kirchhoffer over the lack of control Kirchhoffer had over the study, along with his not following up on patients to see how they were doing. Then Welch tried to tie together how Kirchhoffer’s negligence in the pacemaker study could have had an ill effect on his testimony in court.
“It’s your testimony that [Ed] Skwira, I believe, had an acute myocardial infarction on the morning of February 15, correct?”
“That was my opinion.”
During his redirect examination, David Hoose asked Kirchhoffer if he had anything further he wanted to add. After briefly explaining the letter, Kirchhoffer said, “No one has a perfect study.”
CHAPTER 93
After questioning a jury consultant it had hired—Anita Sarro—Kristen Gilbert’s defense rested its case on Tuesday, February 20. The government then brought in two rebuttal witnesses, DEA agent Clarence Shuler, and the former head of the Springfield Police Department’s Narcotics Unit, Officer John Delaney. Welch had worked on a case in 1995 with Delaney involving the distribution of approximately one-hundred-and-fifty kilograms of cocaine.
Both cops were there to explain to the jury that in all their years of narcotics investigation they had never heard of crack cocaine and heroin users mixing epinephrine with street drugs. Another misguided claim by Gilbert’s defense.
With that, Ponsor said closing arguments would begin in two days.
The previous weekend, Ariane Vuono had labored for three days, trying to come up with the right words to describe to jurors what they had heard for the past four months. She began early Saturday morning and, except for breaking to sleep and eat, didn’t stop writing until late Sunday night. Knowing that it would the biggest day of her professional career, on Tuesday, Vuono practiced the speech before her colleagues in the US Attorney’s Office.
“It’s perfect,” they agreed after she was done.
As she began in court, Vuono thanked the jury for the time they had spent away from their families, then quickly explained the crux of the government’s case—that Gilbert murdered Stanley Jagodowski, Henry Hudon, Kenny Cutting and Ed Skwira, and she “assaulted with the intent to murder Francis Marier, Thomas Callahan, and Angelo Vella,” simply to impress her new boyfriend, James Perrault.
Pointing at Gilbert, Vuono raised her voice and lashed out, “These seven victims, ladies and gentlemen, were veterans. They protected our country during war and peace. They were vulnerable, due to their physical and mental illnesses. Some were seriously ill. And some had no family. And because of that, ladies and gentlemen, they were the perfect victims. And when Kristen Gilbert decided to kill them or assault in attempt to kill them, she used the perfect poison.”
Gilbert sat with her head bowed, showing no sign of emotion. Not since day one and two of the trial had her parents been in the courtroom, but now they sat staring at Ariane Vuono as she accused their daughter of the unthinkable.
“This small vial of 1:1000 epinephrine,” Vuono said, holding an ampoule in her hand as if she were a magician doing tricks with a coin, “can be a life-saving drug.... On the other hand, if this is used maliciously, it can cause death. And don’t think for one minute this defendant, Kristen Gilbert, didn’t know exactly what epinephrine would do when she used it, because everybody will agree that this woman was a bright nurse.”
For the next hour and a half, Vuono meticulously went through and explained each victim’s death and how each witness implicated Gilbert in that death.
At 11:36, she began her timeline argument, explaining how Gilbert had killed Stanley Jagodowski, Henry Hudon, Kenny Cutting and, finally, Ed Skwira.
“She confessed from her own words. She corroborated all the medical evidence in this case . . . she admitted her guilt,” Vuono said.
At one point, Vuono argued how, during a conversation the defendant had with Glenn Gilbert, she confessed she was “the world’s best con artist.”
Vuono next wanted the jury to understand why Gilbert’s coworkers hadn’t come forward sooner.
“They were working elbow to elbow with a person who was killing patients—they were afraid!”
Blasting Dr. Kirchhoffer, Vuono asked jurors if they wanted to rely on the testimony of a doctor who implanted an experimental wire in pacemaker patients during a study without letting them know.
“Do you know how Dr. Kirchhoffer got involved in this case?” Vuono asked, throwing up her hands. “He had a prior case with attorney Weinberg. They were friendly. And now [Dr. Kirchhoffer] is forty thousand dollars richer! Those are sufficient reasons to discount his testimony.
“Let me just say, quickly, that with respect to Dr. Kirchhoffer, anything is possible.... Dr. Grayboys told you, ‘A chair could levitate across the room, too, but it’s not likely to happen.’ ”
After describing what each victim should have been able to do in his life if Gilbert hadn’t cut it short, Vuono concluded by saying, “Ed Skwira, he should have been able to celebrate his sobriety with his family. And instead, his family had to make a decision to let him die.”
Since day one, David Hoose had perhaps the most difficult job out of anyone in the courtroom: putting together a defense for a defendant who failed to provide him with any tangible evidence he could put his arms around. Besides saying that she didn’t do it, and remaining steadfast in her claim throughout the trial, Gilbert hadn’t given Hoose answers to some of the government’s most damaging questions. One witness after the other had placed Gilbert at the scene of each death and given a believable reason as to how and why she could have done it. But the only explanation Gilbert offered was that there was a vendetta against her, and Bonnie Bledsoe and John Wall were stealing epinephrine to support their own heroin and cocaine habits.
Still, Hoose had to give it his best shot.
After explaining to the jury that he wasn’t going to wow them with charts and graphics during his closing, like Vuono had, Hoose said he appreciated the time the jurors had taken out of their lives to participate in such a long and taxing trial.
Then he broke into the only real argument he had at his disposal.
“You must understand this fundamental principle, ladies and gentlemen, to understand why this prosecution was fatally and irretrievably flawed from the outset. We had a suspect before we even knew if there had been a crime committed. And everything that the government did on this case was distorted by that perception.
“There really were only four possible proofs,” Hoose said. “First there is pathology, which never existed. Then there is toxicology, which was not produced. The last two are medicine and circumstantial evidence. We’ve already got two legs of the table cut off. It is being supported by two others: circumstantial evidence and medicine.
“The government has this notion that you can pinpoint the exact moment and cause of death. They’re doctors, not God. Alcohol, weight, cholesterol, tobacco, diabetes—all of them [the patients] had problems with those things. Is everything our family physicians have been telling us all our lives completely irrelevant?
“You have to look for the most obvious cause of death. That is something no government witness did. They looked for epinephrine first,” Hoose shouted. “If you start out looking at cases with sinister eyes and suspicions that something is wrong, then you’ll find it.”
For the next forty-five minutes, Hoose tried to discredit several of the government’s key witnesses, mainly John Wall and Bonnie Bledsoe, who had reasons, he insisted, to try to frame his client.
“[T]o divert attention from themselves, their own drug use and their own probable thefts of epinephrine. Once you have drug addicts like John Wall and Bonnie Bledsoe in the middle of something like this, all bets are off. You cannot believe a
nything they say or do.”
He talked about a coup, suggesting that some of the nurses had gotten together with Wall and Bledsoe because they disapproved of the affair Gilbert was having with Perrault.
After two and a half hours, Hoose finished his argument with a simple plea: “You may, in your lifetimes, ladies and gentlemen, you may never have the opportunity to take a stand as important as the one that you can take tomorrow. It is important for you to do justice in this case and to stand up and to hold on to principle and to hold on to everything that you believe in and to stick to your guns and to not be overwhelmed by an enormous government effort by a technically masterful presentation, but one that is devoid of substance of the type necessary for you to vote for a conviction.
“I ask you to go to the jury room tomorrow and to do what is long overdue in this case: acquit Kristen Gilbert of these horrendous charges that have been levied against her.”
Those who knew Hoose’s work said it was one of the best closing arguments of his career.
With the first word of his twenty-minute rebuttal, Assistant US Attorney Bill Welch summed up how the government felt about Hoose’s continued claims that it had started with a suspect and built a case around her.
“Baloney!” Welch screamed as he stood and walked toward the podium. “That’s what I say, that the government started with a suspect and then forced the facts to fit that theory. I was drowning in a river of analogies for two and a half hours, but in these twenty minutes, I would like to tell you what the facts are in this case. In this case, a witness took the stand and said this: Time is a great test of humility. Well, I say that time is a great test of whether or not you have the right suspect, because in this case every fact that was developed after February 1996 continued to point to that defendant.
“She took the trust and faith the profession put in her hands and abused it in the most horrible way.... [W]hen you take all the facts of this case and you put them together, it forms a compelling wall of guilt. In the end, she is guilty of first-degree murder. She is guilty of assaulting with intent to kill, and the reason she is guilty is because”—and here Welch kicked the volume up a notch—“she did it. Thank you.”
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