by Gary C. King
Houston pointed out that Montgomery had testified at the preliminary hearing that she had never tested for succinylcholine for the purposes of testifying at trial. He asked Anderson if he was aware of any specific articles or journals that indicate that it is acceptable to modify the standard operating procedure utilized to test for succinylmonocholine for the testing of succinylcholine.
“I don’t know that I’ve seen that . . . no.”
Prompted by Houston’s questions, Anderson explained that “method validation” means that it can be shown that the method of testing is reliable, that false positives aren’t present, and that it can be shown that the testing is reproducible and not subject to interference. He stated that he believed the FBI lab had followed standard operating procedure regarding the testing of Kathy’s urine.
During the course of questioning the state’s witness, Houston managed to go on record with regard to his concerns about the controls placed on Kathy’s urine while it was in one of the FBI lab’s refrigerators; how succinylcholine had been added to “John Doe” urine and then attempted to use a liquid chromatograph mass spectrometer to detect its presence; how a power failure had occurred at the FBI lab while Montgomery had been in the middle of repeating the testing procedure after finding evidence of succinylmonocholine in the initial screening of Kathy’s urine; how there was no evidence that a technician came in after the power failure to certify that the liquid chromatograph mass spectrometer was operating properly; and how a bag of succinylcholine used in the controls had sat on the shelf in the FBI lab since 1998.
Houston’s efforts obviously had been to cast doubt on the FBI lab’s methods involved in determining the presence of succinylcholine in Kathy’s urine, and to get it into the record in the process—it might be grounds he could use for appeal in the event that Chaz was convicted. Houston also brought out the fact that a drug screen had been done on Kathy’s urine prior to sending it to the FBI lab in which no evidence of drugs, such as epinephrine, heparin, or atropine, had been found, and drove home his inferences that some of the toxicology results may have been assumed.
“Doctor, you understand the problems in the science of forensic toxicology of assuming a result, true?”
“Certainly.”
“And we’ve seen that demonstrated in the Sybers case, correct?”
Dr. William Sybers was the Panama City, Florida, medical examiner who had been accused of killing his wife with a lethal injection of succinylcholine in 1991, and whose conviction was later reversed based on problems with the scientific evidence.
“Yes.”
“And we’ve seen that demonstrated in the Sybers case, correct?”
“Yes.”
“And you’re very familiar with the notion that in the Sybers case it was stated unequivocally that succinylmonocholine cannot exist in the system endogenously (originating within), correct?” Houston asked.
“I think . . . something to that effect,” Anderson replied.
“Sybers was convicted and served a great period of time before that scientific theory was corrected, did he not?”
“Yes.”
“So the better thing to do prior to the time of assuming what a certain test may give us is to actually do the test.”
“Well, I think you have to temper that with reason, Mr. Houston. There are thousands of drugs that are available. No one can test them all . . . and in this case, for scientific reasons that are straightforward, the drugs you mentioned, for example, couldn’t possibly interfere . . . with succinylcholine. The succinylmonocholine issue was one of interpretation of those results, not one of contradiction of the analytical results.”
“Doctor, the short answer is—whatever Ms. Augustine may have had in her urine was not duplicated in the FBI laboratory in the normal ‘John Doe’ urine for control samples, correct?”
“I guess I really don’t know the answer to that, because I don’t know where the control samples were,” Anderson responded.
“Well, wouldn’t it be important since you’re here discussing the method of validation, and how you approve of that, to know something of the control samples that were utilized in order to achieve the result?”
“Well, they were just negative control urines. I mean—”
“How do you know, Doctor?”
“That is all I can tell you. I can only go by what was in the FBI documentation. I have no firsthand knowledge of where those specimens came from.”
“Right. Or in what condition they were in.”
“No.”
“Or in what condition they may have degraded to after they had been stored in a refrigerator for three days after the succinylcholine had been introduced to the urine. Were you aware of that?”
“I thought we were talking about the negative control urines.”
“We are talking about the urines in general. I think we have three sets of urine. We’ve got Kathy Augustine’s sample urine, allegedly Kathy Augustine’s, correct? Then we’ve got the urine that was created, I am assuming the ‘John Doe’ urine to be positive. And then we’ve got the urine that’s created, ‘John Doe’ urine again, for the purposes of negative control sampling.”
“Yes.”
“All right. Were you aware all of that urine was placed in a refrigerator for three days after the power outage where the liquid blah, blah, blah machine would not work?”
“I was not aware of that specifically.”
“What would the studies or journals that tell us that the urine degradation with succinylcholine already added wouldn’t somehow impact or affect the testing mechanism that was utilized?”
“I don’t think that particular experiment has ever been reported.”
“Doctor, when we consider what we refer to as standard operating procedure, do you have a standard operating procedure to produce the safeguards that the test will be appropriately done?”
“Normally, yes.”
“And do you know by looking at the records, the data package, in this particular case, whether Ms. Montgomery sought any sort of assistance or peer review of her methodology referencing the modification of the succinylmonocholine standard operating procedure adopted in 2001?”
“The only documentation . . . I could possibly see was that it was reviewed by the chief of the FBI section, Dr. Marc LeBeau. So he obviously looked at it and approved it. And there’s a quality control person signature on it. Frankly, I don’t know whether that person would know or not. I do know Dr. LeBeau’s knowledge.”
Houston pointed out that from information included in the data package that the testing was done solely by Montgomery. He also asked questions regarding the alleged injection site on Kathy’s left buttock, and confirmed that the suspicious site had been tested and that test had been negative for any residue of succinylcholine or succinylmonocholine. He pointed out that tests had also been performed on Kathy’s blood plasma that had been obtained from two separate draws nearly two hours apart the morning Kathy had been rushed to the hospital, and those tests, too, had turned out negative.
“And all other testing that was done was actually negative for the presence of succinylcholine or succinylmonocholine, correct?”
“That’s right.”
“And the only test that resulted in a positive was the test performed solely by Ms. Montgomery on the urine.”
“Yes. That’s correct.”
“Doctor, have you ever tested for succinylcholine?”
“I have not.”
“Thank you.”
On redirect, Tom Barb questioned his witness about the alleged injection site and confirmed that the fact that the tissue sample from that site had turned out negative for succinylcholine and succinylmonocholine had been the result that Anderson had expected, and was therefore not shocking or surprising to the chief toxicologist.
“And you expected that because succinylcholine would go away in a live body fairly rapidly, is that correct?”
“That is correct.”
&nbs
p; “Same result for the blood testing?”
“The blood was a little bit more surprising,” Anderson responded. “I have since found an article that says after a few minutes you may find it in the urine and not in the blood. But that was a bit more surprising. I thought, if we had any possibility (of finding the drug’s presence), that would be in the plasma. The urine was the most likely. . . .”
“How fast does this drug get out . . . of a live system?”
“Succinylcholine itself has a half-life of less than one minute,” Anderson said.
“So, if you inject me, and half the drug is gone in less than a minute, then I’m down to a quarter in less than two minutes . . . an eighth in less than three minutes. It goes away pretty fast.”
“Succinylcholine does, yes.”
“You said this process the FBI used was a simple extension,” Barb said. “What does that mean?”
“Succinylcholine—the drug—and succinylmonocholine are very similar,” Anderson explained. “They have a chemical called succinic acid. One has got two choline molecules attached to it, and the other has one. Obviously, succinylmonocholine has one. Both are what we would call a quaternary ammonium compound, so they . . . can be extracted by the same procedure. . . .”
“Mr. Houston also spoke to you about the Sybers case. . . . Are you familiar with that case?” Barb asked.
“I’m not intimately familiar with it, but I . . . have some knowledge of it, yes.”
“The difference between that case and this case is that in Sybers the samples had been embalmed for nine years, and then they were tested. Is that your recollection?”
“I don’t remember exactly how long it was, but it was some period of time.”
“Nobody could say what embalming fluid would do to anything in the body as related to succinylmonocholine.”
“Right.”
“And succinylmonocholine was the only evidence found in the Sybers case, is that correct?”
“To my knowledge.”
“In this case, we also have, for lack of a better term, the parent drug, succinylcholine.”
“Yes.”
“Do you have any doubt that this evidence is—I understand the jury gets to decide whether they believe it or don’t—whether this evidence is trustworthy and reliable enough to tell the jury about?”
“I have no problem with this data indicating that succinylmonocholine and succinylcholine were present.”
“Thank you,” Barb said, finishing his redirect of the witness. Judge Kosach, however, interjected a comment.
“And I would add a question,” Kosach said. “To a reasonable degree of medical probability, would your answer be the same?”
“Yes, sir,” Anderson replied.
Dr. Anderson was excused to make room for the defense’s expert witness as the issues surrounding the motion in limine continued.
Chapter 22
H. Chip Walls, a forensic toxicologist who has been qualified as a toxicology expert in federal, state, county, and city courts, in both criminal and civil cases, took the witness stand on behalf of the defense during the pretrial motions. David Houston began the questioning, taking Walls through the information regarding the data pack from the FBI laboratory, including method validation to substantiate or refute the process as it was used by the FBI lab. He explained that in this case the method was designed to detect succinylmonocholine in biological samples, and in performing method validation, the scientist does things to prove that the test being performed can distinguish a positive from a negative, that there is no residual carryover from one set of tests to another, and that no false positives or false negatives have occurred.
Walls said that he was not aware of any standard operating procedure methodology in the FBI laboratory for the detection of succinylcholine, and he confirmed that the FBI had not sent him a procedure for that—he said that they had basically modified the procedure for the detection of succinylcholine in the samples.
Walls testified that the fact that the source(s) of the negative control samples, as mentioned earlier as having come from volunteers in the lab, were problematic for him in that typically such samples are tested to show that the sample does not contain the analyte or target compound of interest. Most of the time, he said, such samples come from healthy individuals “giving a negative urine sample that proves that type of sample is not going to be positive.” In this case, he would have liked to have seen samples coming from patients in hospitals that may have been given medications, such as the atropine, epinephrine, and heparin that were administered to Kathy in an attempt to save her life, to verify that they did not interfere with the testing process. When asked whether succinylmonocholine was produced as part of the decomposition process, Walls stated, “Not that we know of.”
“What is the definition of ‘false positive’ and ‘false negative’?” Houston asked.
“A false positive is where you find the drug in a sample, whatever target analyte you’re looking at, and it’s really not there,” Walls replied. “Something else has caused an interference that produced a positive result when the drug itself was not there. A false negative is when you have a negative when the drug should be there, but you do not detect it.”
When asked about the importance of keeping the urine frozen for the purpose of the testing, Walls said that succinylmonocholine and succinylcholine can degrade as the samples become warmer—the warmer the sample, the more decomposed the sample might get. It had already been shown in the description of the FBI lab’s chain of custody that the urine had been shipped frozen from Washoe County and had likely still been frozen upon arrival at Quantico, Virginia. However, due to the procedures in place at the FBI lab, it was also shown that the urine had thawed, been refrigerated, and refrozen at various steps along the way of that agency’s bureaucratic staircase. Walls said that the succinylcholine, the parent compound, would decompose very rapidly, but that the succinylmonocholine would degrade at a slower rate and would produce a false negative. In Walls’s opinion, the FBI lab had done a “limited validation study” that he would like to have seen performed differently, particularly with regard to the controls.
Walls indicated that he would have liked to have seen a more complete validation as opposed to the limited validation study that occurred. In fairness to the FBI lab, he said, they had done a positive-negative control, which is typical in a forensic laboratory, to identify a compound and to be able to say that a positive can be identified from a negative sample.
Upon cross-examination by Tom Barb, Walls went through a lengthy question-and-answer session that basically resulted in him saying that the colder the samples to be tested are during storage, the better the chances are that the integrity of the samples would be preserved for testing purposes. There would be less degradation of both the urine and any drugs that it might contain.
“Urine samples are different than tissue samples, as far as your expectation of finding anything in it, is that correct?” Barb asked.
“Yes,” Walls replied. “Urine is somewhat protected from enzymes that normally break drugs down, so once it’s filtered out of the blood into the urine and is stored in the bladder, it may be detectable for longer periods of time.”
“So just take this as an example,” Barb continued. “A call came in at six forty-five . . . ‘Come help me with my wife.’ Medics arrive, do their treatment and resuscitate her, and get her to the hospital at about seven-o-five, seven-ten. So that’s twenty minutes. First urine sample is taken at seven thirty-five. So we’re forty-five, fifty minutes out. Would you expect the urine sample, given that amount of time—we don’t know the injection time, but given that amount of time, forty-five or fifty minutes, would you expect the urine sample to contain that drug if it had been injected?”
“Yes.”
At the end of the at-times-complicated process of presenting the scientific information, Judge Kosach stated that the law in Nevada on the admissibility of expert testimony is very clear,
and he quoted part of it: “The threshold for admissibility of expert testimony turns on whether the expert’s specialized knowledge will assist the trier of fact in understanding the evidence or an issue in dispute.” He denied the defense’s motion in limine, and said that he would allow Montgomery, Anderson, and Walls to testify at trial.
The remaining pretrial motions filed by the defense included whether to allow testimony about statements that Chaz Higgs had made to his coworkers about getting rid of his wife, whether testimony about the e-mails between Chaz Higgs and Linda Ramirez should be allowed, whether probable cause had been adequately shown in the affidavits for search and arrest warrants that were filed by Detective Jenkins, whether Jenkins knowingly and intentionally misrepresented what Kim Ramey had told him regarding the conversation that Chaz Higgs had with her about using succinylcholine to kill someone, a motion to dismiss the charges against the defendant, and so forth. Both sides argued the merits of their respective positions on the issues, but Judge Kosach ultimately sided with the prosecution and denied most of the defense motions.
Following a lunch break, jury selection began at 2:10 P.M. in the courtroom next door to Kosach’s. Although there were ninety-nine potential jurors in the jury pool, the selection of twelve jurors and three alternates did not take as long as it could have despite the lengthy questioning. Jury selection was completed by early that evening, and the jurors were sent home for the day so that they could get a good night’s sleep. They were instructed to report to Judge Kosach’s courtroom the following morning, prior to nine o’clock for the beginning of what was expected to be a three-week trial.
Opening statements began on Tuesday, June 19, 2007, at 9:05 A.M. After the jury was seated in the jury box and everyone was accounted for, Deputy District Attorney Christopher Hicks greeted the jury and then began.
“Succinylcholine, or succs as it’s commonly called in the medical setting, is a paralytic drug that has devastating effects,” Hicks said. “It’s commonly used in emergency situations when a person needs to be intubated—they need to have a tube run down their throat so that a machine can breathe for them. It is administered both intravenously and intramuscularly. And when it is administered, it renders a patient totally paralyzed. They cannot move, they cannot breathe, they can’t even blink their eyes, and yet they are totally awake. Without the assistance of another person in helping that person to breathe, they will suffocate, their heart will stop, and their brain will likely suffer irreversible damage due to oxygen deprivation.”