by Gary C. King
“Well, there’s no data to support the administration of succinylcholine in subcutaneous tissue. I don’t even know the data with regard to intramuscular injection. The only time I’ve ever given succinylcholine or have been involved with succinylcholine has always been intravenously.”
“Didn’t we actually discuss the notion that it could be as high as—what was it?—eight hundred milligrams in order to receive any effect whatsoever?” Houston asked.
“That’s a very rough estimate,” Mashour responded. “I mean, again, without knowing the pharmacodynamics in subcu tissue, which has not been studied, that’s a ballpark guess at best.”
“Okay. Now, Doctor, eight hundred milligrams would be forty cc’s, correct?”
“That’s correct.”
“This is a ten-cc syringe?”
“That’s correct.”
“That would mean you’d have to inject four of these just to get the eight hundred milligrams, correct?”
“Correct.”
“And you have a fellowship, or did your fellowship in critical care medicine, true?”
“That’s correct.”
“So, in your opinion, since succinylcholine is unlikely to be the cause of death in this particular case . . . does . . . sudden cardiac arrest seem . . . possibly more likely?”
“It seems more likely based on the information, yes.”
“Thank you very much, Doctor.”
“Doctor,” asked Barb on redirect, “is it your opinion or Mr. Houston’s opinion that succinylcholine isn’t the cause of death in this case?”
“Well, I think it’s less likely that—”
“Doctor,” Barb interrupted, “has anybody told you that there was succinylcholine present in Ms. Augustine’s urine after her death—or excuse me—when she first came to the hospital?”
“When she first came to the hospital, I was not aware of that,” Mashour said.
“Okay. Does that change your opinion, if that was your opinion?”
“Well, it would change my opinion.”
Chapter 31
The next day, Thursday, June 21, 2007, Dr. William Anderson, chief toxicologist for the Division of Forensic Science of the Washoe County Sheriff ’s Office, defined forensic toxicology as the study of poisons in a medical-legal context and provided testimony on how he became involved in the Kathy Augustine case. A qualified expert witness, Anderson had testified in more than one hundred cases over the course of his career and had become involved in this one, as with many of the others that he had provided testimony for, because of his position. His office had received all of the biological samples related to the case. After inventorying them, logging them into their computer system, and then storing them in either a freezer or refrigerator—depending upon what specimen was being stored—his division was responsible for sending them off to the FBI laboratory in Virginia, after learning that succinylcholine might have been involved. Succinylcholine testing, he said, is an assay that his lab does not perform.
At one point, he said, he had reviewed Kathy’s medical records that stemmed from her emergency hospitalization to see whether she had been given any succinylcholine therapeutically, because if she had, it would negate their theories, as well as the need to look for the drug in her system. After completing his review of Kathy’s medical records, and being unable to turn up any information that Kathy may have been given succinylcholine at the hospital in a therapeutic sense, he called the FBI’s chemistry section leader and asked if they could do the testing.
“So we packaged it up and sent it to them,” Anderson testified. “Then we began to do a series of analyses on the urine for common drugs of abuse and other things. The only assay we sent out was the succinylcholine, and the succinylmonocholine. . . . We did all the rest of them here in Reno.”
“Let’s talk first about what you did here,” Barb said. “What did you test?”
“We tested the urine sample for the common drugs of abuse . . . didn’t find any,” Anderson said. “We did an acid neutral extraction for some other therapeutic drugs. And we looked for the organic base screen, which is a rather comprehensive screen that detects literally hundreds of compounds. And we didn’t find any.”
He said that because they had some interest in the drug etomidate, they repeated the base strain in the serum. However, they hadn’t detected any. He explained that they had only looked at the blood plasma for the etomidate because it metabolizes fairly extensively and does not readily show up in the urine. Anderson said that his lab had also looked for the presence of barbiturates, but none were present. He also said that he didn’t have any problems with the FBI tests and the manner in which they had determined that succinylcholine had been in Kathy’s urine.
“The test appears to be conclusive to me that succinylcholine and succinylmonocholine were in the urine sample,” Anderson said.
As the trial continued that morning, testimony was heard from a lab assistant who testified how specimens were labeled and received by the lab; a deputy coroner investigator who had made arrangements for Kathy’s body to be transferred from the hospital to the coroner’s office—he had also photographed the body; and another deputy coroner who testified about delivering Kathy Augustine’s biological samples to the Washoe County Crime Lab. Their testimony, which had taken up most of the morning that remained, basically went through the motions of testifying about what they did as part of their job duties, with regard to the case. Although their testimony hadn’t provided any earth-shattering new details about the case, it was, nonetheless, needed as part of the legal record.
Right after lunch recess, a defense witness, Dr. Anton Paul Sohn, was called out of turn, due to a scheduling conflict, even though the prosecution was still presenting its case. Everyone had agreed previously that Sohn, a medical doctor who was board-certified in pathology as a pathologist, forensic pathologist, and clinical and anatomical pathologist, would be taken out of order. Defense attorney Alan Baum asked him to tell the jury about each of the disciplines in which he had been board-certified.
Clinical pathology, he said, is the study of laboratory medicine and interpretation of laboratory results; anatomical pathology is the specialty that evaluates biopsies both from surgery and from the doctor’s office to determine, for instance, whether a tumor is cancerous or not; forensic pathology, he explained, is the study of medical-legal medicine, including the cause and manner of death and toxicology related to death. He was currently on staff at Washoe Medical Center, now known as Renown. He was also on staff at Alturas Medical, at St. Mary’s Hospital, and was active at the Veterans Administration Hospital. He also told the jury about his membership in a long string of professional societies, and the fact that he was presently the chairman of the Department of Pathology at the University of Nevada School of Medicine. He was proffered as an expert witness in this case by Baum.
Sohn explained to the jury that he had formed opinions about the case based upon his review of Kathy Augustine’s autopsy, the circumstances surrounding her death, some, but not all, of the hospital records pertaining to this case, toxicology results, and Dr. Ellen Clark’s testimony before the grand jury. He also had reviewed seven slides that Dr. Clark had taken of tissue from the autopsy. Spanning his forty-year career, Sohn said that he had conducted approximately three thousand autopsies—some were forensic cases, and some were not.
When Baum drew Sohn’s attention to Dr. Clark’s autopsy report, which appeared to have been divided into three categories—external examination, internal examination, and microscopic examination—Sohn testified that he had found no omissions or shortcomings associated with Dr. Clark’s report on either external or internal findings, neither of which he’d had any comment upon, but had noted a condition of cardiac hypertrophy in her microscopic findings.
When asked to do so, Sohn described the condition of cardiac hypertrophy as an enlargement either of the heart or the muscle fibers of the heart, a condition that is sometimes seen in an athlete
who lifts a lot of weights and his or her arms become larger because of the increased workload of the muscles. He said that a similar condition sometimes occurs with the heart under increased workload. In the tissues that Dr. Clark had examined, Sohn said, the muscle fibers and the nuclei in the fibers were larger than normal.
“What does that tell you about the health or lack of health of the heart from which those tissues were taken and microscopically examined?” Baum asked.
“Well, there are probably a hundred things that can cause cardiac hypertrophy,” Sohn said, “all the way from congestive heart failure to hardening of the arteries of the heart to valvular problems to hypertension diseases involving other organs, such as the kidney, such as the adrenal gland. So this indicates to me that something is going wrong that’s causing her heart to work harder than normal.”
“Is this the kind of thing that a forensic pathologist conducting an autopsy to try to determine cause of death would consider important?” Baum asked.
“Yes, it is.”
“Why is it important?”
“It’s important because hypertrophy, just like using the example of the arm muscle, you may lift weights for weeks and your muscle [might] not get any bigger. So the heart may work harder, but it takes weeks to months for hypertrophy to set in. So this is something that just didn’t happen overnight or over three or four or five days. This is something [where] her heart worked harder over a period of weeks to months.”
“By the way, you discovered this condition by looking at the slides that Dr. Clark had produced as part of her microscopic examination in the autopsy, correct?”
“Yes. And she gave them to me.”
“It was there in the slides for you to find?”
“Yes.”
“Did Dr. Clark make any mention whatsoever in her autopsy of this cardiac hypertrophy?”
“No, she did not.”
“Do you consider that an omission, a significant omission?”
“I do.”
“For the reasons that you’ve indicated, that is a reflection of some abnormal heart functioning?”
“Yes,” Sohn replied. “And I might emphasize to the jury that the muscle fiber enlarges before the heart enlarges. Most of the time, when we see cardiac hypertrophy, the heart is bigger than normal. For instance, you’ve heard of an athlete’s heart, the bigger heart. And so what has happened here is this hypertrophy has occurred previous or before the muscle overall got significantly enlarged. And so I can understand why she wasn’t thinking of that when she looked at the slides.”
“Is that—in lay terms, is that condition that this is a reflection of a good thing or a bad thing for somebody to have in your heart?”
“It’s a good thing.”
“In your heart?”
“It’s a good thing.”
“The cardiac hypertrophy is a good thing?”
“It’s a good thing.”
“In what respect?”
“Because if the muscle does not enlarge, then the heart fails,” Sohn said. “So this is a compensatory hypertrophy, if you will. In other words, she needed that in order to maintain her cardiac reserve.”
Later, after testimony about mitral valve prolapse, or regurgitation, Baum asked: “I want to clarify my question, which was certainly framed as a layperson, and that is—the cardiac hypertrophy, I asked if that was a good thing or a bad thing, and you said it’s a good thing. It’s my understanding is the reason it’s a good thing because—is because if the heart didn’t respond that way, because it was working harder, it would fail.”
“That is correct,” Sohn said.
“So it’s the heart’s way of getting stronger to adjust for the defect, which in this case is mitral valve regurgitation.”
“That is correct.”
Also during Sohn’s testimony, Baum posed questions to the witness regarding the alleged injection site on Kathy’s left buttock. He showed Sohn a series of photographic exhibits of that area of her anatomy that had been taken at her autopsy, and he acknowledged that he could see the punctate area in the photos. However, he said, he had not based his opinion regarding the time frame of when he believed that the punctate marks appeared but rather had based it on the cut surface of the punctate area and other documentation that he had reviewed in this case. After examining tissue from the punctate area, medical records, and slides, Sohn said that it was “highly unlikely” that Kathy had been given an injection in that spot prior to being admitted to the hospital on July 8, 2006. Instead, he testified, he believed that the wound was no more than forty-eight hours old at the time of her death.
During his cross-examination of Sohn, Tom Barb wanted to know how the needle mark had come to appear on Kathy’s buttocks during her hospitalization, since there was no record of hospital nursing staff having given her an injection in that area.
“Would it surprise you to know that there was no therapeutic care in the sense of a shot in the buttocks for any reason during her stay at the hospital?” Barb asked.
“No, it would not.”
“Then the punctate wounds that you’ve described that can only be at most forty-eight hours old would have had to have been caused by somebody other than the hospital personnel, medical personnel.”
“Very often people do not chart things that happen,” Sohn said in reference to hospital workers sometimes failing to notate each thing that they do when treating a patient. “She could have gotten a shot and it wouldn’t have been charted. I’ve seen that a number of times.”
Sohn said that it was highly unlikely that the puncture injury at the site of the alleged injection could have been made on July 8, 2006.
Later that afternoon, Detective David Jenkins was called to the witness stand. Jenkins, a solid man with a full head of hair and a mustache, faced the clerk and was sworn in as he had been many times before over the course of his thirty-year career. As he responded to Barb’s questions, Jenkins explained to the jury how he had come to be involved in the case through the telephone call he had received from Kim Ramey.
Jenkins explained that after he had spoken with some of the nurses in the intensive care unit and had determined that Kim Ramey certainly seemed credible enough, he contacted the Washoe County Coroner’s Office and requested that they consider doing an autopsy on Kathy Augustine’s body. He said that he wanted to secure potential items of evidence in the event that the case turned into a criminal investigation, which it had. He said that he had also asked the nurses in the intensive care unit at Washoe Medical Center to confirm that the body fluids that had been collected would be retained and held as potential evidence. He told of attending the autopsy, after which he began drafting an affidavit in support of a search warrant. He explained that he had obtained the search warrant for Kathy Augustine’s home on Otter Way in Reno.
After confirming that Jenkins had executed the search warrant at Kathy’s Reno home, Barb showed Jenkins an item that had been marked Exhibit 2.
“Would you tell us what that is, please?”
“This is a vial containing—or labeled to have contained drugs that I found inside the home on Otter Way,” Jenkins replied.
“Would you open it, please? And what is that, sir?”
“It is a glass vial with a lid,” Jenkins said. “It’s labeled to contain twenty milligrams of etomidate.”
“And where did you find this?”
“That was actually inside a pouch of a backpack that I found on the floor in the master bedroom that was next to the bed and between the master bath.”
Jenkins described the backpack as newer condition, yellow and black in color, manufactured with a nylon-type material. It was filled at that time with several different items, including the etomidate. Jenkins explained that he hadn’t taken the backpack at that time but had photographed it in place. He later collected it, he said, in Hampton, Virginia. Jenkins went over the items that were seized as evidence, both in Reno and in Hampton, Virginia. Among the items he mentioned wa
s the bottle of etomidate, bedsheets and pillows from Kathy Augustine’s bed, various types of medical literature that a nurse might possess, and so forth. Included in the items Jenkins testified about was the index card with succinylcholine information on it, as well as other cards with similar medical and pharmacological information on them. Other portions of his testimony pertained to procedural items, including evidence inventory and chain of custody. He pointed out that other than items used by REMSA personnel to treat Kathy, investigators had not found any syringes at the Otter Way residence, nor had they found any succinylcholine on the premises or in Chaz’s possession. They also hadn’t found any of those items during the search of his car in Virginia.
During the course of Jenkins’s testimony, it was brought out that a note had been found inside a black binder in the master bedroom of the Otter Way house that read: Fly flag at half mast for Kathy, and another that said: Contact Dominic Gentile for protection. Jenkins’s testimony never provided any further information regarding those notes, nor did he speculate as to what they meant. Jenkins’s testimony never really brought anything new or fresh to the table, and at times had seemed, correctly, like a formality that needed to be carried out.
When David Houston cross-examined Jenkins, he indicated that a skin assessment had been done on Kathy while she was in the ICU on July 8 that indicated that she had no wounds that anyone had notated.
“And as the case agent in this particular matter,” Houston said, “you’re aware there were a number of people interviewed that had direct contact with Kathy Augustine during the early-morning hours of July eighth while she was in the hospital, true?”
“Yes, sir,” Jenkins responded.
“Not one of those people indicated ever having observed a punctate-type injury to the left buttock, did they?”