Prosecution Closing Argument

12             MR. WILSON:  HEAVEN FORBID, YOUR HONOR.
      13         IF IT PLEASE THE COURT, COUNSEL, LADIES AND GENTLEMEN
      14    OF THE JURY.  BEFORE I BEGIN MY INITIAL CLOSING STATEMENT, I
      15    WOULD LIKE TO TAKE AN OPPORTUNITY TO THANK YOU ON BEHALF OF
      16    MYSELF AND MY STAFF AND THOSE ATTORNEYS WHO ASSISTED US IN
      17    THIS TRIAL PROCEEDING.  YOU'VE BEEN EXTREMELY ATTENTIVE
      18    THROUGHOUT THIS LONG AND ARDUOUS PROCESS AND I'M VERY
      19    APPRECIATIVE OF THAT FACT AND THE FACT THAT YOU HAVE DONE
      20    SO.  AND AT THIS TIME WHEN WE FINISH ARGUING, THE CASE WILL
      21    BE TURNED OVER TO YOU SO YOU CAN COMPLETE YOUR SERVICE IN
      22    THIS MATTER.  I'M VERY CONFIDENT AND RESPECTFUL OF THE
      23    DIGNITY THAT YOU'VE CONDUCTED YOURSELVES HEREIN.
      24         I THINK THE FIRST THING THAT YOU NEED TO UNDERSTAND IS
      25    THAT THIS DEFENDANT STANDS BEFORE YOU ACCUSED OF THE CRIME


                                                                       4381



       1    OF FIVE COUNTS OF MURDER.  UNDER THE LAWS OF THE STATE OF
       2    UTAH AND THE LAWS OF JURISDICTION THROUGHOUT THIS NATION, WE
       3    RECOGNIZE THE CONCEPT AND HAVE LONG RECOGNIZED THAT THROUGH
       4    THE HISTORY OF THIS WORLD THAT IT IS UNLAWFUL TO TAKE THE
       5    LIFE OF ANOTHER HUMAN BEING.  NOW, WE'VE CHARGED -- THE
       6    STATE OF UTAH HAS CHARGED THIS DEFENDANT WITH THE UNLAWFUL
       7    TAKING OF THE LIFE OF FIVE HUMAN BEINGS; THOSE INDIVIDUALS
       8    BEING ELLEN ANDERSON, JUDITH LARSEN, MARY CRANE, LYDIA SMITH
       9    AND ENNIS ALLDREDGE.
      10         NOW, YOU'VE SAT THROUGH THE PROCEEDINGS HERE AND YOU'VE
      11    HEARD THE EVIDENCE.  AND I'M GOING TO INDICATE TO YOU WHAT
      12    THE THEORY OF THE STATE'S CASE IS AND HAS BEEN FROM THE VERY
      13    START.  IT'S OUR CONTENTION THAT THE DEFENDANT, WITH THE
      14    EXCEPTION OF ELLEN ANDERSON, THE FIRST DEATH, ENGAGED IN A
      15    PROCESS OF ACTIVE EUTHANASIA.  I THINK YOU ALL KNOW WHAT
      16    EUTHANASIA IS.  AND EUTHANASIA IS ANOTHER FORM OF THE
      17    UNLAWFUL TAKING OF A HUMAN LIFE.  IN THIS PARTICULAR CONTEXT
      18    IT WAS DONE IN A HOSPITAL SETTING.
      19         AS TO ELLEN ANDERSON, THE STATE'S POSITION IS THAT HER
      20    DEATH RESULTED FROM THE DEFENDANT'S CONDUCT IN ADMINISTERING
      21    MORPHINE TO HER WHICH IN A MANNER EVIDENCED DEPRAVED
      22    INDIFFERENCE TO ELLEN ANDERSON CREATING A GRAVE RISK OF
      23    DEATH AND THEREBY CAUSED HER DEATH.  THAT'S THE SECOND PRONG
      24    OF THE ELEMENTS IN EACH COUNT THAT THIS DEFENDANT IS CHARGED
      25    WITH.


                                                                       4382



       1         NOW, AS I'VE INDICATED, WE'VE HAD AN OPPORTUNITY FOR
       2    THESE PAST FOUR OR FIVE WEEKS FOR YOU TO HEAR THE EVIDENCE
       3    IN SUPPORT OF THE STATE'S POSITION AS TO WHY WE BELIEVE THE
       4    FACTS DEMONSTRATE BEYOND A REASONABLE DOUBT THAT THIS
       5    DEFENDANT DID INDEED COMMIT THESE CRIMES.  BEFORE WE TALK
       6    ABOUT THE CRIMES THEMSELVES AND THE SPECIFIC CONDUCT LEADING
       7    UP TO THAT, THOUGH, I THINK WE NEED TO DISCUSS THE SETTING,
       8    IF YOU WILL, THE CRIME SCENE IN THIS PARTICULAR MATTER.
       9         AS YOU'LL RECALL, EARLY IN THE PROCEEDINGS WE PRODUCED
      10    WITNESSES WHO TALKED ABOUT HOW THIS GEROPSYCHIATRIC UNIT WAS
      11    ESTABLISHED AND THE PURPOSE FOR WHICH IT WAS ESTABLISHED.
      12    IF YOU'LL REMEMBER RIGHT, THERE WAS TESTIMONY FROM TODD
      13    CHAMBERS TO THAT EFFECT WHO INITIALLY ASSISTED IN THE
      14    ESTABLISHMENT OF THE GEROPSYCH UNIT.  NOW, THE CONCEPT IS A
      15    GOOD CONCEPT.  IT WAS ESTABLISHED FOR THE PURPOSE OF HELPING
      16    THOSE INDIVIDUALS, PARTICULARLY ELDERLY INDIVIDUALS, WHO
      17    WERE EXPERIENCING DIFFICULTIES IN TERMS OF ACTING OUT IN A
      18    VARIETY OF FASHIONS AND IN THE PARTICULAR SETTINGS THAT THEY
      19    WERE HOUSED IN, PRIMARILY NURSING HOME FACILITIES.  AND IT
      20    WAS A PURPOSE TO ADJUST THEIR MEDICATIONS TO ASSIST THEM IN
      21    MIND-ALTERING PROCESS THAT WOULD GIVE THEM A BETTER QUALITY
      22    OF LIFE.  NOW, IT'S A PSYCHIATRIC SETTING.  IT'S NOT A
      23    HOSPICE SETTING.  IT'S NOT A CRITICAL CARE UNIT.  IT WAS A
      24    PSYCHIATRIC SETTING.  IT WAS MORE FROM A STANDPOINT OF BEING
      25    ABLE TO MONITOR THESE PATIENTS BECAUSE IT WAS PRECISELY THE


                                                                       4383



       1    REASON THAT THESE INDIVIDUALS WERE GOING TO THAT UNIT.
       2         YOU HEARD FROM THE TESTIMONY OF WELBY JENSEN WHO WAS
       3    THE INITIAL MEDICAL DIRECTOR OF THE UNIT AS TO THE FACT THAT
       4    ONE OF THE THINGS THAT WAS SO PLEASING OR SO VALUABLE TO HIM
       5    IN THIS CONTEXT WAS THE FACT THAT THIS UNIT WAS NOT HOUSED
       6    SEPARATELY AND APART FROM THE HOSPITAL, BUT WAS WITHIN THE
       7    CONFINES OF THE HOSPITAL.  AND THE REASON THAT IT WAS WITHIN
       8    THE CONFINES OF THE HOSPITAL AND THE REASON HE LIKED THAT
       9    SETUP WAS BECAUSE HE DID NOT HAVE TO WORRY ABOUT ADDRESSING
      10    THE OTHER MEDICAL PROBLEMS THAT MAY BE ASSOCIATED WITH THE
      11    CARE OF THESE INDIVIDUALS, THAT THEY HAD RIGHT THERE IN THE
      12    HOSPITAL AN INTERNIST AND OTHER MEDICAL SPECIALISTS WHO
      13    COULD DEAL WITH ANY KIND OF MEDICAL PROBLEM THAT THESE
      14    INDIVIDUALS MAY BE EXPERIENCING WHILE IN THAT PARTICULAR
      15    SETTING, AND IT FREED HIM UP TO CONCENTRATE ON HIS
      16    SPECIALTY, THAT SPECIALTY BEING THE TREATMENT OF THE MENTAL
      17    PROBLEMS OF THESE PATIENTS.  THAT LADIES AND GENTLEMEN, WAS
      18    THE PURPOSE OF THIS UNIT.
      19         LET'S TALK A LITTLE BIT ABOUT NOW THE CHARACTERISTICS
      20    OF THE PATIENTS WHO WERE ADMITTED TO THAT UNIT, AND EACH ONE
      21    OF THESE FIVE INDIVIDUALS EXHIBITED THOSE CHARACTERISTICS.
      22    WE KNOW THAT THEY WERE PEOPLE WHO WERE EXPERIENCING
      23    PRIMARILY BEHAVIORAL PROBLEMS.  THEY WERE BROUGHT INTO THAT
      24    UNIT TO STABILIZE THEIR SITUATION.  BUT IT WAS VERY CLEAR
      25    THAT ONE OF THE CRITERIA THAT EXISTED ON THE UNIT WAS THE


                                                                       4384



       1    FACT THAT THEY COULD NOT BE SUFFERING FROM ANY ACUTE OR
       2    LIFE-THREATENING ILLNESSES.  THAT WAS ONE OF THE CRITERIA.
       3    SO WHEN THESE PATIENTS WERE ADMITTED AND FIT THAT CRITERIA,
       4    THERE WAS A PROCESS THAT THEY WENT THROUGH TO ENSURE THAT
       5    THEY WERE FIT FOR THE PURPOSES OF THAT UNIT.  AND IT WAS A
       6    FUNDAMENTAL PROCESS THAT THEY WENT THROUGH.  THEY HAVE TO BE
       7    EVALUATED.  THEY WERE TO BE EVALUATED PHYSICALLY BY AN
       8    INTERNIST.  THEY HAVE TO BE EVALUATED BY THE PSYCHIATRIST
       9    AND ASSESSED AS TO THEIR MENTAL STATUS AND THEY WERE TO BE
      10    RAN THROUGH VARIOUS TESTING PROCEDURES TO DETERMINE JUST
      11    EXACTLY WHAT THEIR PHYSICAL SITUATION WAS.  WHY?  LADIES AND
      12    GENTLEMEN, I WOULD SUBMIT TO YOU THERE'S A VARIETY OF
      13    REASONS.  ONE OF THOSE REASONS BEING THEY WANTED TO
      14    ELIMINATE POSSIBLE PHYSICAL PROBLEMS THAT MIGHT BE
      15    ASSOCIATED WITH THE MENTAL PROBLEMS THESE PEOPLE WERE HAVING
      16    WITH THE BURIAL PROBLEMS, IF YOU WILL.
      17         PUT YOURSELF IN THEIR SHOES, THOUGH.  YOU ARE SITTING
      18    IN A NURSING HOME SETTING, AND I THINK MOST OF YOU HAVE
      19    PROBABLY HAD EXPERIENCE WITH LOVED ONES WHO HAVE BEEN PLACED
      20    IN THAT TYPE OF A SETTING WHERE THEY ARE SUFFERING FROM THE
      21    DISEASE PROCESS OF OLD AGE AND THEY ARE HAVING VARIOUS
      22    STAGES OF DEMENTIA, PROGRESSION OF DEMENTIA, THEY ARE NOT
      23    REMEMBERING THINGS, THEY ARE NOT ORIENTATED TO TIME AND
      24    PLACE, THEY CAN'T ARTICULATE, THEY CAN'T DRESS THEMSELVES,
      25    MANY OF THEM ARE INCONTINENT, THEY ARE SUFFERING FROM THESE


                                                                       4385



       1    DISEASES OF DEGENERATION OF AGE, CAN YOU IMAGINE IF YOU ARE
       2    MOVED FROM A SETTING THAT YOU ARE FAMILIAR IN TO A NEW
       3    SETTING, THE CONFUSION, THE FEAR THAT THAT WOULD INSPIRE IN
       4    THOSE INDIVIDUALS?  AND I WOULD SUBMIT TO YOU THAT IN EACH
       5    ONE OF THESE INSTANCES THERE WAS EVIDENCE OF THAT CONFUSION,
       6    THAT INABILITY TO UNDERSTAND.
       7         I GUESS IF I CAN LIKEN IT TO ANYTHING I WOULD LIKEN IT
       8    TO A SMALL CHILD.  I THINK ELLEN ANDERSON'S CASE IS A GOOD
       9    DESCRIPTION, BECAUSE AS YOU RECALL, THE TESTIMONY OF JAY
      10    POHLMAN AND BARBARA POHLMAN WHEN THEY WERE TALKING ABOUT
      11    LEAVING HER AND SHE IS CALLING OUT TO THEM AND THAT'S WHEN
      12    SHE BECOMES VERY DISTURBED AT THAT POINT.  SHE'S LEFT ALONE.
      13    IF YOU TAKE A CHILD AND MAYBE ANY OF YOU HAVE HAD THAT
      14    EXPERIENCE WHERE YOU GO PUT THEM IN A SETTING, EVEN IN YOUR
      15    OWN HOME WITH A BABY-SITTER SOMETIMES AND YOU LEAVE THEM AND
      16    THEY SCREAM AND THEY BECOME VERY AGITATED AND UPSET.  THAT'S
      17    THE TYPE OF BEHAVIOR YOU SEE EXHIBITED IN THESE PEOPLE.
      18    THEN ANOTHER PART OF THAT PARTICULAR SETTING I THINK AND A
      19    VERY SIGNIFICANT PART OF THAT SETTING IS THE
      20    PHYSICIAN-PATIENT-FAMILY RELATIONSHIP.
      21         YOU HEARD TESTIMONY FROM ALL FAMILY MEMBERS WHEN THEY
      22    BROUGHT THEIR LOVED ONE TO THIS UNIT FOR PURPOSES OF TRYING
      23    TO MODIFY THEIR LIFE THEY WOULD ACT MORE APPROPRIATELY IN
      24    THE NURSING HOME SETTING.  DO YOU THINK IT EVER CROSSED
      25    THEIR MIND THAT THEY WERE GOING TO DIE IN THIS SETTING?  DO


                                                                       4386



       1    YOU THINK THAT WAS SOMETHING THAT YOU WOULD ORDINARILY LOOK
       2    AT IN A PSYCHIATRIC SETTING WHERE YOU ARE BRINGING YOUR
       3    FAMILY MEMBER TO IT FOR TREATMENT?  I THINK NOT.  THEY ALSO
       4    BROUGHT THEM INTO A SETTING WHERE THEY ARE IN A HOSPITAL.
       5    THERE'S OTHER FACILITIES AND OTHER MEDICAL UNITS AVAILABLE
       6    AND THEY HAVE A PSYCHIATRIST WHO'S IN CHARGE OF THIS
       7    PARTICULAR UNIT, AND THEY ARE ASSURED, I'M SURE, THAT THEIR
       8    LOVED ONES ARE GOING TO BE WELL TAKEN CARE OF IN THIS
       9    CONTEXT AND UNDERSTANDABLY SO.
      10         NOW, THEY DO NOT HAVE THE SPECIAL KNOWLEDGE THAT A
      11    PHYSICIAN HAS.  THEY DO NOT HAVE THE SPECIAL KNOWLEDGE THAT
      12    A NURSE HAS IN A GEROPSYCH UNIT.  THEY ENTRUST THEIR LOVED
      13    ONE TO THE CARE.  AND WHAT IS THE STATUS OF THAT LOVED ONE?
      14    THAT STATUS OF THAT LOVED ONE IS TRULY AS A RESULT THAT
      15    PERSON WHO HAS NO ABILITY WHATSOEVER TO EVEN BEGIN TO ASSESS
      16    OR EVALUATE THE CARE THAT'S BEING ADMINISTERED TO THEM.
      17         THERE IS THREE AREAS THAT I WANTED TO GO OVER WITH YOU
      18    THAT I THINK DEMONSTRATE THE FACTUAL ELEMENTS OF EACH COUNT
      19    IN THIS CASE.  THE FIRST AREA THAT WE WANT TO TALK ABOUT IS
      20    KNOWLEDGE.  WHAT KNOWLEDGE DOES THE PHYSICIAN, THE TREATING
      21    PHYSICIAN, HAVE IN RESPECT TO THESE PARTICULAR PATIENTS?
      22    THERE'S SOME GENERAL CONCEPTS THAT I WOULD LIKE TO REVIEW
      23    WITH YOU THAT YOU WERE TAUGHT IN TERMS OF THE TESTIMONY THAT
      24    WAS GIVEN IN PARTICULAR BY DR. FEHLAUER.  AND I THINK WE
      25    NEED TO REVIEW THOSE SO THAT WHEN YOU GET AROUND TO


                                                                       4387



       1    EVALUATING THE EVIDENCE IN THIS PARTICULAR SETTING, YOU CAN
       2    DETERMINE BY THAT EVIDENCE, NUMBER ONE, WHAT THE RISK WAS,
       3    THE GRAVE RISK OF DEATH, AND, NUMBER TWO, WHAT KNOWLEDGE DID
       4    THIS PHYSICIAN HAVE OR SHOULD HAVE HAD IN ADMINISTERING
       5    THESE TYPES OF MEDICATIONS TO THESE PATIENTS IN THE MANNER
       6    IN WHICH THEY WERE ADMINISTERED?
       7         AS YOU RECALL, DR. FEHLAUER TALKED ABOUT A NUMBER OF
       8    DRUGS THAT YOU ARE FAMILIAR WITH HERE.  AND I POINT OUT TO
       9    YOU -- USE THIS POINTER -- IF YOU'LL REMEMBER THIS
      10    PARTICULAR EXHIBIT, THERE WAS, AS HE REFERENCED HERE, THE
      11    VARIOUS DRUGS, MORPHINE SULFATE, TRAZODONE, BUSPAR.  BUT AS
      12    HE WENT DOWN THROUGH THESE DRUGS HE SHOWED YOU WHAT WAS THE
      13    RECOMMENDED ADULT STARTING DOSE WHICH HE OBTAINED FROM THE
      14    1995 PHYSICIANS DESK REFERENCE.
      15         HE ALSO TESTIFIED TO YOU AS TO WHAT THE RECOMMENDED
      16    ELDERLY STARTING DOSE WAS WHICH HE HAD OBTAINED FROM THE
      17    GERIATRIC DOSAGE HANDBOOK.  AND IF YOU'LL LOOK THROUGH THESE
      18    PARTICULAR DRUGS YOU SEE THAT ALL OF THE ONES LISTED HAVE
      19    WHAT WE CALL CENTRAL NERVOUS SYSTEM DEPRESSANT QUALITIES TO
      20    THEM.  AND HE'S INDICATED AS TO THE -- IN PARTICULAR THE
      21    PAIN KILLING DRUGS MORPHINE SULFATE.
      22         HE'S INDICATED THAT IN AN ELDERLY PERSON A STARTING
      23    DOSE, WHICH I THINK IS SIGNIFICANT FOR YOU TO REMEMBER, 2.5
      24    MILLIGRAMS INTRAMUSCULARLY EVERY FOUR TO SIX HOURS AS
      25    NEEDED.  HE WENT DOWN THROUGH EACH ONE OF THESE DRUGS AND AS


                                                                       4388



       1    I LOOK THROUGH THERE, AND I WOULD WANT TO CALL YOUR
       2    ATTENTION TO A COUPLE THAT RING PARTICULARLY IMPORTANT IN
       3    THIS CASE.  HALDOL, WHICH IS A PSYCHOTROPIC MEDICATION AND
       4    AN ANTIPSYCHOTIC DRUG.  HALDOL, THE RECOMMENDED DOSAGE FOR
       5    AN ADULT CAN BE UP TO 15 MILLIGRAMS PER DAY STARTING.  BUT
       6    LOOK WHAT IT CHANGES TO IN AN ELDERLY PERSON .25 TO .5
       7    MILLIGRAMS BY MOUTH ONE TO TWO TIMES PER DAY.  ONE MILLIGRAM
       8    PER DAY MAXIMUM STARTING.  ONE MILLIGRAM.
       9         THE GENERAL THEME THAT YOU SEE IN ALL OF THESE DRUGS
      10    FOR THE ELDERLY, IT'S CONSISTENT ACROSS THE BOARD, THAT IF
      11    YOU ARE DEALING WITH AN ELDERLY PERSON YOU DEAL IN VERY
      12    CONSERVATIVE DOSAGES.  YOU DON'T START WITH REGULAR STARTING
      13    ADULT DOSAGES.  THIS IS SOMETHING THAT I WOULD SUBMIT A
      14    PERSON HOLDING THEMSELVES OUT AS A GERIATRIC PSYCHIATRIST
      15    WHO SPECIALIZED IN THAT FIELD WOULD KNOW.
      16         NOW, I POINT YOU TO ANOTHER EXHIBIT AND, AGAIN, THIS
      17    WAS REFERENCED IN DR. FEHLAUER'S TESTIMONY, AND WE TALK
      18    ABOUT THE GENERAL CONSENSUS OF HALF LIFE AND DURATION OF
      19    EFFECT.  AND HE'S GONE DOWN THROUGH IN THIS PARTICULAR
      20    EXHIBIT AND DEMONSTRATES FOR YOU, NUMBER ONE, HALF LIFE IS
      21    DESCRIBED AS THE AMOUNT OF TIME IT TAKES FOR THE BLOOD
      22    CONCENTRATION OF A DRUG TO DECREASE BY 50 PERCENT.  I THINK
      23    YOU'VE HEARD ENOUGH ABOUT HALF LIFE.  DURATION OF EFFECT,
      24    HOWEVER, IS THE AMOUNT OF TIME IN HOURS THAT THE DRUG HAS
      25    ACTIVITY IN THE BODY.  YOU'LL NOTE THAT IN EACH ONE OF THE


                                                                       4389



       1    AREAS PHYSIOLOGICALLY THAT WE HAVE DEFINED HERE, DRUG
       2    METABOLISM, DRUG EXCRETION, PROTEIN BINDING, LEAN BODY MASS,
       3    FAT BODY MASS, BUT EACH ONE OF THOSE PARTICULAR
       4    PHYSIOLOGICAL CHARACTERISTICS CREATES DIFFERENT EFFECTS IN
       5    THE ELDERLY.  THIS IS SOMETHING YOU NEED TO KNOW, SHOULD
       6    KNOW, AND A PHYSICIAN HOLDING HIMSELF OUT AS A SPECIALIST
       7    GERIATRIC PSYCHIATRIST WOULD KNOW, THAT THE EFFECTS ON DRUGS
       8    IN THE ELDERLY GENERALLY SPEAKING IS GOING TO BE THAT THE
       9    DURATION OF EFFECT IS LONGER.  IT'S LONGER.
      10         I LOOK AT IT AS BEING SORT OF A STAIRCASE.  I THINK
      11    THAT'S THE BEST DESCRIPTION I CAN DESCRIBE TO YOU AS YOU
      12    TAKE AN INDIVIDUAL, YOU GIVE HIM DRUGS.  AND THE DURATION
      13    YOU HAVE, THAT EFFECT, IT DROPS THEM DOWN A STEP.  BEFORE
      14    THEY CAN TAKE THAT STEP BACK UP, IF YOU GIVE THEM MORE
      15    DRUGS, IT DROPS THEM DOWN ANOTHER STEP UNTIL YOU CONTINUE TO
      16    HAVE THE STEP DOWNS TO THE POINT THAT THE PATIENT CAN NO
      17    LONGER GET BACK UP THE STEPS.  OKAY.
      18         WE THEN RELATE THE DRUGS IN THE PREVIOUS EXHIBIT TO THE
      19    PHARMACOLOGY IN THE ELDERLY.  IN ADDITION TO THE DOSAGE
      20    AMOUNTS, NOW WE FIND OUT THAT PHARMACOLOGY FOR MORPHINE
      21    SULFATE, THE DURATION OF ACTION MAY BE PROLONGED IN THE
      22    ELDERLY.  AND AS WAS AGREED BY I THINK EVERY EXPERT THAT
      23    TESTIFIED THAT ELDERLY GENERALLY HAVE MORE SUSCEPTIBLITY TO
      24    CENTRAL NERVOUS SYSTEM DEPRESSANT EFFECTS OF THAT NARCOTICS.
      25    LOOK AT THE DRUGS.  TRAZODONE, VERY SEDATING.  ATIVAN, THIS


                                                                       4390



       1    ONE IS PREPARED FOR THE ELDERLY.  HALDOL, LOOK AT SIDE FOR
       2    SPECIAL CONSIDERATION, INCREASED CONFUSION, MEMORY LOSS,
       3    PSYCHOTIC BEHAVIOR, AGITATION, SEDATION, THESE ARE ALL SIDE
       4    EFFECTS OF THESE VARIOUS DRUGS, LADIES AND GENTLEMEN OF THE
       5    JURY.  AND THIS HALDOL HAS A HALF LIFE 20 TO 40 HOURS AND
       6    MAY BE PROLONGED IN THE ELDERLY.
       7         EVERY EXPERT TESTIFIED CONSISTENTLY THAT IF YOU ADD
       8    CENTRAL NERVOUS SYSTEM DEPRESSANT ON THE CENTRAL NERVOUS
       9    SYSTEM DEPRESSANTS YOU HAVE THE ADMINISTRATIVE EFFECT.  YOU
      10    HAVE THE ADDED EFFECT, A RISK THAT IS KNOWN BY A GERIATRIC
      11    PSYCHIATRIST WHO HELD HIMSELF OUT AS A SPECIALIST.
      12         DR. HARE ALSO TESTIFIED AS TO A COUPLE OF EXHIBITS,
      13    FIRST OF ALL, THAT HE'D PREPARED AS IT RELATED TO THE
      14    CENTRAL NERVOUS SYSTEM DEPRESSANTS.  NOW, THESE ARE -- THIS
      15    WAS PREPARED IN RESPECT TO THE PSYCHOTROPIC MEDICATIONS, THE
      16    TRAZODONE AND HALDOL.  SOME OF THESE PARTICULAR DRUGS THAT
      17    RELATE TO THAT HAVE THE QUALITIES OF CENTRAL NERVOUS SYSTEM
      18    DEPRESSANTS.  BUT THE IMMEDIATE EFFECTS, SLEEPINESS, COMA,
      19    DECREASED BREATHING, ASPIRATION, DECREASED BLOOD PRESSURE,
      20    DECREASED FOOD AND WATER INTAKE, NOW AS HE TESTIFIED, THE
      21    DECREASED FOOD AND WATER INTAKE OBVIOUSLY IS A SECONDARY
      22    EFFECT AS A RESULT OF THE INDIVIDUAL.  WHEN AN INDIVIDUAL IS
      23    IN A COMA, THERE IS NO WAY THEY ARE GOING TO TAKE WATER OR
      24    FOOD.  THE LONG-TERM EFFECT AS RESULTING FROM THE DRUGS AND
      25    THE INTERACTION OF THE DRUGS WITH THE VARIOUS FUNCTIONS OF


                                                                       4391



       1    THE BODY ARE DECREASED OXYGEN TO THE BRAIN, THE HEART, THE
       2    KIDNEYS, THE REDUCED ORGAN FUNCTION, EVENTUALLY RESULTING IN
       3    ORGANIC DAMAGE, DEHYDRATION AND INCREASED SENSITIVITY TO
       4    DRUG EFFECTS AND PNEUMONIA.  THE DRUG OF CHOICE HERE FOR THE
       5    CARE AS IT'S ALLEGEDLY DONE IS THE PAIN RELIEF IS AN
       6    IMMEDIATE EFFECT OF MORPHINE.  THAT'S THE RELIEF.
       7         BUT DO YOU RECALL HARE'S TESTIMONY?  YOU DON'T USE
       8    MORPHINE EXCEPT IN THE CONTEXT OF TALK ABOUT CHRONIC PAIN.
       9    HE TALKED ABOUT SEVERE PAIN.  HE TALKED ABOUT POST-OPERATIVE
      10    PAIN.  WE'RE NOT TALKING ABOUT THE ORDINARY DAY TO DAY PAIN
      11    THAT SO MANY OF US EXPERIENCE.  MORPHINE IS, AS THEY HAVE
      12    TESTIFIED, THE GOLD STANDARD BY WHICH ALL OTHER PAIN DRUGS
      13    ARE JUDGED BY.  MORPHINE -- AND THEY ALL TESTIFIED TO
      14    THIS -- IS RECOGNIZED HAS A POTENTIAL TO CAUSE DEATH.  IT
      15    CREATES A RISK OF DEATH IN PATIENTS.  AND THE MONITORING
      16    ASPECT, IF YOU ARE GOING TO ADMINISTER MORPHINE, IS A VERY
      17    SIGNIFICANT PART OF THAT PROCESS TO MAKE SURE YOU DO NOT
      18    SUBJECT THOSE PATIENTS TO A RISK OF DEATH.  AGAIN, YOU HAVE
      19    THE SAME SIMILAR TYPES OF LONG-TERM EFFECTS THAT RESULT FOR
      20    AN INDIVIDUAL WHO'S ADMINISTERING THE DRUG MORPHINE.
      21         AS I INDICATED TO YOU, THE STATE'S POSITION IS, IS THAT
      22    THE DEFENDANT CAUSED THE DEATHS OF THESE FIVE PATIENTS,
      23    AGAIN, WITH THE USE OF THESE CENTRAL NERVOUS SYSTEM
      24    DEPRESSANT DRUGS BY ADMINISTERING THEM IN SUCH QUANTITIES
      25    AND IN SUCH A MANNER THAT IT CREATED THE DEATH OF EACH AND


                                                                       4392



       1    EVERY ONE OF THESE PATIENTS.
       2         NOW, WE'VE TALKED A LITTLE BIT ABOUT KNOWLEDGE,
       3    KNOWLEDGE THAT THIS -- A PHYSICIAN HAS AND KNOWLEDGE OF THE
       4    RISK CREATED BY THE ADMINISTRATION OF THESE DRUGS.  LET'S
       5    NOW TALK ABOUT CAUSATION.  I WOULD SUBMIT THAT IN EACH ONE
       6    OF THESE CASES, AGAIN WITH THE EXCEPTION OF ELLEN ANDERSON,
       7    THAT YOU SEE A PATTERN OF CONDUCT WHERE THE DOCTOR ENGAGES
       8    IN A PROCESS WHERE HE ESSENTIALLY BLASTS EACH PATIENT WITH
       9    THE ADMINISTRATION OF THESE PSYCHOTROPIC MEDICATIONS WHICH
      10    CREATE THE EFFECTS THAT WE'VE SEEN AS TESTIFIED TO BY
      11    DR. HARE WHICH WEAKENED THE INDIVIDUALS' SYSTEM TO THE POINT
      12    THAT THEY APPEARED TO BE DYING.  AND THEN, LADIES AND
      13    GENTLEMEN, THEN IN MOST INSTANCES -- NOT ALL, BECAUSE THERE
      14    ARE SOME VARIATIONS ON THAT THEME -- BUT IN MOST INSTANCES
      15    THE PATIENT'S DEATH IS THEN CAUSED AS A RESULT OF THE
      16    ADMINISTRATION OF MORPHINE.  THAT'S WHAT CAUSED THE DEATHS.
      17    THAT IS WHAT HAS BEEN TESTIFIED TO BY DR. HARE, BY
      18    DR. FEHLAUER, AND BY DR. CROOKSTON.  THEY ARE ALL CONSISTENT
      19    IN THEIR TESTIMONY AS TO MORPHINE IN COMBINATION WITH THESE
      20    OTHER DRUGS.  IN SOME INSTANCES WAS THE PRIMARY ACT OF
      21    DEATH.
      22         AS YOU RECALL, DR. HARE TESTIFIED TO ESSENTIALLY WHAT
      23    HAPPENED WITH A MORPHINE-INDUCED DEATH.  THEY STOP
      24    BREATHING, THEY FORGET HOW TO BREATHE, THE CENTRAL NERVOUS
      25    SYSTEM IN THE BACK PART OF THE SPINE IS DEPRESSED SO THAT IT


                                                                       4393



       1    NO LONGER SIGNALS THE BRAIN TO ACTIVATE THE BREATHING
       2    PROCESS AND YOU DIE.
       3         LET'S TALK ABOUT ELLEN ANDERSON.  I HAVE ILLUSTRATIVE
       4    AIDS HERE THAT I PREPARED FOR YOU IN CONNECTION WITH THESE
       5    CHARTS.  THIS PART HERE DEALS WITH THE ADMINISTRATION OF THE
       6    MORPHINE ELLEN ANDERSON RECEIVED.  THIS CHART OVER HERE IS A
       7    DEFINITION OF THE SCALE BY WHICH WE PREPARED ELLEN
       8    ANDERSON'S LEVEL OF ACTIVITY, ALERTNESS AND AWARENESS IN
       9    CONNECTION WITH HER STAY AT THE GEROPSYCH UNIT.  YOU'LL NOTE
      10    THAT A-3 -- THESE HAVE BEEN REFERENCED OFF PRIMARILY THE
      11    NURSING NOTES IN REVIEW OF THE MEDICAL RECORDS WHICH I WILL
      12    HAVE IN EVIDENCE.  BUT YOU WILL NOTE THAT A-3 MEANS
      13    AGITATED.  A-1 MEANS LETHARGIC AND UNRESPONSIVE.  SO IT'S
      14    THE WHITE AREA HERE.  THIS YELLOW LINE HERE DENOTES THE TIME
      15    THAT SHE WAS ADMITTED.
      16         NOW, I WANTED TO TAKE YOU THROUGH ELLEN ANDERSON'S CASE
      17    JUST SO THAT YOU CAN SEE THE DEMONSTRATION CHART-WISE AS TO
      18    WHAT OCCURRED HERE.  YOU'LL RECALL THAT SHE WAS ADMITTED ON
      19    DECEMBER 29 AT APPROXIMATELY 4 O'CLOCK.  THAT AT THE TIME OF
      20    HER ADMISSION SHE WAS ACCOMPANIED BY JAY POHLMAN AND HIS
      21    WIFE, THE DAUGHTER OF ELLEN ANDERSON, MARY POHLMAN.  YOU'LL
      22    RECALL THEIR TESTIMONY TO THE EFFECT THAT THEY REMAINED WITH
      23    HER DURING THE ADMISSION PROCESS, THAT SHE WAS WITH THEM
      24    THIS TOTAL TIME AND UP UNTIL ABOUT 7:30 IN THE EVENING WHEN
      25    THEY WERE TOLD THEY WOULD HAVE TO LEAVE.  NOW, YOU'LL RECALL


                                                                       4394



       1    THAT ELLEN ANDERSON, AT LEAST ACCORDING TO JAY POHLMAN, HE'D
       2    INDICATED THAT SHE WAS REMARKABLY CALM FOR BEING PUT IN THIS
       3    PARTICULAR CIRCUMSTANCE.  BUT THAT CALMNESS DISSIPATED AS
       4    SOON AS THEY LEFT HER SIDE.
       5         IN LOOKING AT THE NURSING NOTES WE SHOW THAT THE
       6    DEFENDANT CALLED IN AN ORDER FOR MEDICATIONS AND HE CALLED
       7    THAT ORDER IN SOMETIME BEFORE IT WAS NOTED AT -- IT WASN'T
       8    NOTED UNTIL 2130 HOURS BY LAURIE WILLSON.  BUT THEY HAD
       9    BEGUN.  APPARENTLY THERE WAS A NOTE FROM LAURIE WILLSON TO
      10    THE EFFECT THAT ELLEN ANDERSON APPEARED TO BE IN SEVERE
      11    PAIN.  NOW, KEEP IN MIND THE TELEPHONE ORDER ITSELF WAS FOR
      12    10 MILLIGRAMS OF MORPHINE NOW.  NOW, THAT MORPHINE WAS
      13    ADMINISTERED TO ELLEN ANDERSON.  IT HAPPENS SOMEWHERE AROUND
      14    7:30 IN THE EVENING OF HER ADMISSION.  IT'S NOTED IN THE
      15    RECORD THAT A FEW HOURS LATER SHE SEEMS TO BE RESTING
      16    COMFORTABLY.
      17         A NURSE SHIFT CHANGE TAKES PLACE AND I THINK IT WAS AT
      18    11 O'CLOCK.  TRACY SCHOLL COMES ON BOARD AT 11 O'CLOCK AND
      19    TRACY SCHOLL AT 1 O'CLOCK IN THE MORNING INDICATES THAT
      20    ELLEN ANDERSON'S RESPIRATIONS ARE ERRATIC, BETWEEN 8 TO 16.
      21    BUT MORE SIGNIFICANTLY -- OR I SHOULD SAY EQUALLY
      22    SIGNIFICANT, HER BLOOD PRESSURE IS DOWN TO 70 OVER 50,
      23    EXTREMELY LOW BLOOD PRESSURE AT 1 O'CLOCK IN THE MORNING.
      24    THAT CONCERNS HER.  THAT CONCERNS HER SO MUCH SHE PAGES
      25    DR. WEITZEL.


                                                                       4395



       1         SHE ALSO PAGES -- OR NOT PAGES BUT SHE INFORMS THE
       2    NURSE SUPERVISOR OF THAT PARTICULAR PROBLEM.  SO WHAT
       3    HAPPENS NEXT?  WELL, IF YOU LOOK AT JUDITH LARSEN'S RECORD
       4    YOU'LL FIND THAT BETWEEN THE HOURS OF 7 O'CLOCK TO I THINK
       5    THE LAST PAGE WAS IN THE AREA OF 3 O'CLOCK, THAT DR. WEITZEL
       6    IS ALSO BEING PAGED IN CONNECTION WITH JUDITH LARSEN.  WHY?
       7    BECAUSE SHE'S VOMITING AND SHE SEEMS TO BE VOMITING TIME AND
       8    TIME AGAIN.  NOW, THAT PROCESS IS GOING ON AT THE SAME TIME
       9    THAT WE HAVE THE OTHER PROCESS.  THERE IS A TOTAL OF SEVEN
      10    PAGES MADE TO DR. WEITZEL BETWEEN THE HOURS OF 7 O'CLOCK IN
      11    THE EVENING AND 3 O'CLOCK IN THE MORNING ON THAT PARTICULAR
      12    DATE IN CONNECTION WITH JUDITH LARSEN AND IN CONNECTION WITH
      13    ELLEN ANDERSON.  DR. WEITZEL RESPONDS AT 3:30.
      14         NOW, ONE OTHER ITEM OF INTEREST HERE IS THE FACT THAT
      15    DR. HARE, WHEN HE REVIEWED THESE RECORDS SAID, THE 1 O'CLOCK
      16    NOTATION OF THE MORPHINE OR OF THE BLOOD PRESSURE AND
      17    RESPIRATIONS WAS INDICATIVE OF THE TOXIC EFFECT ON ELLEN
      18    ANDERSON OF THE MORPHINE.  NOW, THIS TAKES PLACE FIVE AND A
      19    HALF HOURS AFTER THE INITIAL SHOT.  AGAIN, REFERRING YOU
      20    BACK TO THE DURATION OF ACTION AND THE EFFECT THAT THESE
      21    DRUGS HAVE ON THE ELDERLY.
      22         3:30, TRACY SCHOLL TESTIFIES THAT SHE INDEED NOTIFIED
      23    DR. WEITZEL NOT ONLY OF THE FACT THAT THE PATIENT WAS NOW
      24    APPEARING RESTLESS AGAIN AND AGITATED AND THRASHING, NOW
      25    THERE IS NO INDICATION OF PAIN IN THAT PARTICULAR NOTE.  BUT


                                                                       4396



       1    SHE DOES INDICATE AGITATION AT THAT JUNCTURE, AND I WOULD
       2    SUGGEST ON THE CHART THAT'S THE SPIKE RIGHT HERE.  ELLEN
       3    ANDERSON IS -- THEN THE DOCTOR ORDERS AN ADDITIONAL 10
       4    MILLIGRAMS OF MORPHINE.  NOW GO BACK.  GO BACK IF YOU WILL
       5    TO THE CHART.  MAYBE WE SHOULD PUT IT UP HERE.  ADULTS
       6    STARTING DOSE.  ELDERLY STARTING DOSE 2.5 MILLIGRAMS
       7    INTRAMUSCULARLY EVERY FOUR TO SIX HOURS AS NEEDED.  ON THE
       8    LOW END OF THAT SCALE 10 MILLIGRAMS IS FOUR TIMES THE
       9    STARTING DOSE FOR ELLEN ANDERSON.  FOUR TIMES.  WHAT HAPPENS
      10    AT 3:30?  SHE'S ADMINISTERED ANOTHER 10 MILLIGRAMS OF
      11    MORPHINE.  5:30 SHE GOES IN AND APPARENTLY HAS AN E.K.G. AND
      12    ALSO AN X-RAY WHICH LATER SHOWS THAT SHE HAD SOME
      13    INDICATIONS THAT SHE HAD PNEUMONIA.
      14         NOW, I WOULD SUGGEST TO YOU MORPHINE ON TOP OF
      15    PNEUMONIA, IF YOU ARE REDUCING THE RESPIRATIONS OF A PERSON
      16    WHO'S ALREADY SUFFERING FROM PNEUMONIA, I DON'T THINK IT
      17    TAKES TOO MUCH OF AN OBSERVATION TO FIGURE OUT WHAT'S GOING
      18    TO HAPPEN THERE.  THAT YOU ARE GOING TO INCREASE THE RISK OF
      19    DEATH TO THIS PATIENT.  INCREASE IT.
      20         NOW, WHAT WAS THE NECESSITY OF GIVING ELLEN ANDERSON
      21    MORPHINE?  ACCORDING TO THE DEFENDANT'S TESTIMONY, THE
      22    NECESSITY WAS SHE WAS IN SEVERE PAIN AS REFERENCED BY NURSE
      23    LAURIE WILLSON.  NOW THE DOCTOR KNEW, AT LEAST HE SAID HE
      24    KNEW, THAT SHE HAD BEEN PRESCRIBED LORTAB IN THE PAST FOR
      25    HER PAIN.  THERE'S A RECORD THAT'S BEEN PUT INTO EVIDENCE


                                                                       4397



       1    FROM THE PIONEER -- I THINK THE PIONEER CARE CENTER AS TO
       2    ELLEN ANDERSON.  THERE'S A RECORD THAT RELATES TO THE
       3    MEDICATIONS THAT SHE WAS PRESCRIBED OR ADMINISTERED WHILE IN
       4    THAT CARE CENTER.  AND YOU MAY HAVE TO REFERENCE THIS PAGE
       5    NOTE.  BUT IN THOSE RECORDS IT'S REFERENCED AS PAGES 337,
       6    339, 341, AND 343.  THOSE RECORDS INDICATE THAT ELLEN
       7    ANDERSON DID NOT RECEIVE ANY LORTAB FOR THE MONTH OF
       8    SEPTEMBER.  SHE DID NOT RECEIVE ANY LORTAB FOR THE MONTH OF
       9    OCTOBER.  SHE RECEIVED TWO PILLS IN THE MONTH OF NOVEMBER.
      10    AND SHE DID NOT RECEIVE ANY LORTAB IN THE MONTH OF DECEMBER.
      11    WHY THE NECESSITY OF PRESCRIBING A DRUG SO POTENT AND SO
      12    RISKY AS MORPHINE?
      13         NOW, THE DEFENDANT'S TESTIFIED THAT HE DID A MENTAL
      14    ASSESSMENT ON THIS PATIENT THE EVENING OF HER -- OR THE
      15    AFTERNOON OF HER ADMISSION ABOUT 5 O'CLOCK AND HE EXPLAINED
      16    TO YOU THE REASON THAT HE DID.  THERE'S A PSYCHIATRIC
      17    EVALUATION WHICH WAS REFERENCED AS BEING DICTATED THE
      18    FOLLOWING DAY AFTER THE DEATH OF THIS PATIENT AND TYPED ON
      19    THAT SAME DATE.  THE REASON BEING IS HE MADE THE ASSESSMENT.
      20    HE WAS IN A HURRY AND HE JUST WROTE THAT.  HE WOULD
      21    ORDINARILY WRITE DICTATED ON PSYCHIATRIC ASSESSMENT ON THE
      22    29TH.  THERE'S NO INDEPENDENT INDICATION THE TESTIMONY OF
      23    BARBARA POHLMAN AND JAY POHLMAN THAT SHE -- THAT THEY SAW
      24    THE DEFENDANT.  THERE'S NO INDICATION ANYWHERE IN THOSE
      25    RECORDS THAT HE SAW THE VICTIM.  THE ONLY RECORD WE HAVE IS


                                                                       4398



       1    HIS OWN SELF-SERVING STATEMENT THAT'S CONTAINED IN THE -- IN
       2    THE PROGRESS NOTE.
       3         NOW TAKE A LOOK, IF YOU WILL, AT THAT PROGRESS NOTE AND
       4    ALSO TAKE A LOOK AT THE PSYCHIATRIC EVALUATION AND THEN WHEN
       5    YOU ARE REVIEWING SOME OF THESE OTHER PATIENTS' RECORDS, I
       6    WOULD SUGGEST MAYBE YOU TAKE A LOOK AT THEIR RECORDS AS TO
       7    WHEN THE PROGRESS NOTE REFLECTS IT WAS DICTATED AND WHEN IT
       8    WAS, IN FACT, TYPED AND DICTATED ACCORDING TO THE DICTATION
       9    EQUIPMENT AT THE HOSPITAL.  IN EVERY OTHER INSTANCE, LADIES
      10    AND GENTLEMEN OF THE JURY, YOU'LL FIND THAT THAT DICTATION
      11    TAKES PLACE ON THE SAME DATE IT'S TRANSCRIBED.
      12         ELLEN ANDERSON AFTER THE E.K.G. AND THE RADIOLOGY
      13    REPORT, STARTS TO EXHIBIT -- I THINK IT'S SIGNIFICANT TO
      14    NOTE SHE STARTS TO EXHIBIT AGAIN RESPIRATORY -- ERRATIC
      15    RESPIRATION.  SHE STARTS TO EXHIBIT THE FACT THAT HER BLOOD
      16    PRESSURE IS GOING DOWN AGAIN.  AS I RECALL, AT 7:30 THEY ARE
      17    HAVING A HARD TIME GETTING ANY KIND OF -- KIND OF BLOOD
      18    PRESSURE ON HER AND AT 8:55, APPROXIMATELY FIVE AND HALF
      19    HOURS AFTER THE SECOND SHOT IS ADMINISTERED, ELLEN ANDERSON
      20    DIES.  LOOK AT THE CHART AS A COMPARISON TO THE MORPHINE
      21    THAT WAS PRESCRIBED.  I THINK IT DEMONSTRATES THE WHOLE
      22    STORY RIGHT THERE.
      23         I THINK I SHOULD SAY I THINK THE EVIDENCE BEFORE YOU
      24    SHOWS THAT SHE WAS NOT EVALUATED.  HER WEIGHT WAS NOT TAKEN
      25    INTO CONSIDERATION FOR A PERSON OF HER AGE AND SIZE, AND I


                                                                       4399



       1    WOULD SUGGEST TO YOU ACCORDING TO DR. CROOKSTON'S TESTIMONY
       2    WITH HER WEIGHT OF 81 POUNDS, THAT SHOULD HAVE EVEN ADJUSTED
       3    DOWNWARD.  IT SHOULDN'T EVEN HAVE TO BE .5 MILLIGRAMS.  BUT
       4    I WOULD FURTHER SUBMIT THERE WAS NO NECESSITY.  THEY COULD
       5    HAVE USED THE LORTAB.  THEY COULD HAVE USED OTHER MEASURES
       6    THAT WERE FAR LESS RISKY AND THEY COULD HAVE WAITED UNTIL
       7    THEY HAD THE PHYSICAL EVALUATION, UNTIL THEY HAD THE E.K.G.
       8    UNTIL THEY HAD THE RADIOLOGY REPORT BEFORE ADMINISTERING A
       9    DRUG OF THAT NATURE.  THIS DOCTOR ORDERED THAT
      10    ADMINISTRATION.  HE WAS THE ATTENDING PHYSICIAN.  HE WAS THE
      11    ONE WHO WAS AWARE OF THOSE RISKS, BUT YET HE SUBJECTED THAT
      12    PATIENT TO THOSE RISKS KNOWING FULL WELL WHAT THE
      13    CONSEQUENCES WOULD BE.
      14         JUDITH LARSEN.  AGAIN, WE HAVE ON THE TOP PART OF THE
      15    EXHIBIT THE ADMINISTRATION OF THE VARIOUS DRUGS.  KEEP IN
      16    MIND THAT ALL OF THESE DRUG DOSAGES ARE REPRESENTED BY THE
      17    GERIATRIC HANDBOOK, THE DOSING HANDBOOK.  SO WHEN YOU SEE
      18    LIKE, FOR INSTANCE, HERE ON THE 7TH THE DRUG TRAZODONE, IT
      19    SHOWS THAT THERE WERE DOSAGES OF -- TWO DOSAGES EQUIVALENT
      20    TO WHAT WOULD HAVE BEEN THE DAILY DOSE FOR THAT RECOMMENDED
      21    GERIATRIC HANDBOOK.
      22         NOW, SOME OF THESE DRUGS ADMITTEDLY HAD BEEN GIVEN TO
      23    THE PATIENT -- SOME OF THE PATIENTS BEFORE, SO THERE HAS TO
      24    BE SOME ADJUSTMENT AS IT RELATES TO THE FACT THAT THEY'D
      25    ALREADY RECEIVED SOME OF THEM.  BUT FOR THE MOST PART I


                                                                       4400



       1    THINK YOU CAN LOOK AT THAT PARTICULAR EXHIBIT AND I THINK IT
       2    EXPLAINS FOR THE MOST PART NOT ONLY WHAT WOULD BE A
       3    RECOMMENDED DOSAGE, BUT ALSO THE FACT THAT YOU ARE COMBINING
       4    THEM IN COMBINATION WITH OTHER CENTRAL NERVOUS SYSTEM
       5    DEPRESSANTS.
       6         AGAIN, THE ACTIVITY -- JUDITH LARSEN'S LEVEL OF
       7    ALERTNESS AND ACTIVITY IS TAKEN FROM THE NURSES' NOTES AND
       8    YOU SEE THE VARIATIONS IN HER ACTIVITY.  WE COME ALONG HERE
       9    TO AROUND DECEMBER THE 10TH, AND IF YOU'LL REMEMBER THE
      10    TESTIMONY, THAT AROUND THAT TIME SHE TOOK A TURN FOR THE
      11    WORSE AND IT SEEMS TO BE VERY MUCH DEMONSTRATED ON THIS
      12    CHART.  YOU SEE HER GOING DOWN, CLEAR DOWN, LETHARGIC AND
      13    SHE CONTINUES THAT UP UNTIL THE TIME SHE -- RIGHT IN HERE WE
      14    HAVE DRUGS WITHHELD.  THIS WAS THE NURSES WITHHOLDING THESE
      15    ADMINISTRATION OF THESE DRUGS.  THEY DID NOT FEEL IT WAS
      16    NECESSARY IN CONNECTION WITH JUDITH LARSEN.  THEY DID NOT
      17    FEEL THE NEED TO GIVE HER THESE OTHER MEDICATIONS.  WHAT
      18    HAPPENS?  YOU SEE THE NOTE, I THINK IT WAS ON DECEMBER 14 OR
      19    RIGHT AROUND THAT TIME FROM DR. WEITZEL THAT IN RESPECT TO
      20    HIS CONVERSATION -- I CAN'T REMEMBER WHICH NURSE IT WAS --
      21    WHERE HE WRITES IN HIS NOTE AND SHE INDICATES JUDITH LARSEN
      22    HAS MADE A MIRACULOUS RECOVERY.  PATIENT HAS MADE A
      23    MIRACULOUS RECOVERY.  WHAT HAPPENS?  WE AGAIN SEE INCREASING
      24    DOSAGES OVER THESE NEXT SEVERAL WEEKS.  SHE CONTINUES TO
      25    MAINTAIN ANOTHER -- A FAIRLY DECENT LEVEL, AND THEN WE SEE A


                                                                       4401



       1    DROP HERE ON THE 21ST AND IT'S RIGHT AROUND THIS PERIOD OF
       2    TIME.
       3         AS YOU RECALL MERLIN LARSEN'S TESTIMONY THAT HE HAS A
       4    CONVERSATION WITH -- I GUESS IT WAS WITH SOMEBODY ON THE
       5    STAFF INDICATING HE WAS GOING TO HAVE TO MAKE ARRANGEMENTS
       6    TO TAKE HIS MOTHER OUT.  I THINK HE TALKS TO MAYBE IT'S THE
       7    SOCIAL WORKER, AND HE TALKS WITH THE DOCTOR ABOUT THAT FACT.
       8    AND THEN SUBSEQUENTLY WE GET INTO RIGHT AROUND
       9    CHRISTMASTIME.  AND THERE'S A PIECE OF EVIDENCE THAT I WANT
      10    TO CALL YOUR ATTENTION TO, IT'S EXHIBIT NUMBER 48.  THIS IS
      11    THE CONTROLLED SUBSTANCES LOG.  NOW, THIS LOG WAS NOT
      12    MAINTAINED ON THE UNIT.  THIS IS A LOG THAT WAS MAINTAINED
      13    IN THE PHARMACY FOR CONTROLLED SUBSTANCES WHICH WERE TAKEN
      14    OUT OF THE PHARMACY FOR PURPOSES OF ADMINISTERING TO THE
      15    PATIENTS IN THE GEROPSYCH UNIT.  THAT LOG IS FROM DECEMBER 6
      16    THROUGH JANUARY 14.  GO THROUGH THAT LOG.  YOU'LL FIND THAT
      17    THERE ARE NO -- THERE'S NO MORPHINE ADMINISTERED AT ANY TIME
      18    DURING THE TIME PERIOD UP UNTIL CHRISTMAS DAY OF 1995.
      19         NOW, THERE WAS MORPHINE ORDERED BY DR. WEITZEL FOR
      20    15 MILLIGRAMS BACK ON DECEMBER THE 13TH FOR JUDITH LARSEN.
      21    THAT WAS A P.R.N. ORDER, AND AS YOU'LL RECALL, I THINK IT
      22    WAS NURSE HARDEY'S TESTIMONY, THAT ORDER REMAINED
      23    OUTSTANDING UP UNTIL ABOUT THE 19TH WHEN SHE FINALLY
      24    PERSUADED THE DOCTOR HE SHOULD RESCIND THAT ORDER BECAUSE
      25    SHE WAS FEARFUL THAT SOME NURSE, BECAUSE IT'S A P.R.N.


                                                                       4402



       1    ORDER, MIGHT ADMINISTER THAT MORPHINE TO JUDITH LARSEN AND
       2    SHE'D DONE HER OWN RESEARCH AND KNEW ABOUT THE
       3    ADMINISTRATIVE EFFECTS OF THESE PARTICULAR DRUGS ALONG WITH
       4    MORPHINE.  SO SHE WAS AWARE OF THE RISKS AND SHE DID NOT
       5    WANT TO SEE THAT OCCUR.
       6         BUT ANOTHER SIGNIFICANT NOTE OF INTEREST HERE IS HE
       7    ORDERS 15 MILLIGRAMS BACK HERE, FAIRLY SIGNIFICANT DOSE
       8    ACCORDING TO THE GERIATRIC HANDBOOK WHICH WOULD BE SIX TIMES
       9    WHAT A STARTING DOSE FOR A GERIATRIC PATIENT WOULD BE.  THAT
      10    ORDER IS NOT FILLED.  BUT COME DECEMBER 25TH, THE RECORDS
      11    NOTE TO DR. WEITZEL'S PROGRESS NOTES OR TO HIS PHYSICIAN'S
      12    ORDERS THAT HE PERCEIVES OR SEES HER IN SOME DISCOMFORT.  SO
      13    HE ORDERS THREE DOSAGES, TWO MILLIGRAMS EACH, TO TAKE PLACE
      14    OVER A FOUR-HOUR TIME PERIOD EVERY TWO HOURS.  I DON'T
      15    UNDERSTAND THE RATIONALE, THAT ONE IS IF THERE WAS PAIN
      16    PRESENT, IS PROBABLY VERY MUCH IN CONFORMANCE WITH THE
      17    GERIATRIC HANDBOOK FROM THAT STANDPOINT.  SO WHAT'S THE
      18    RATIONALE?
      19         THE NEXT DAY, JUDITH LARSEN SUFFERS A SEIZURE.
      20    DR. DIENHART IS BROUGHT IN.  DR. DIENHART MAKES -- THERE'S
      21    TWO OBSERVATIONS HERE.  WELL, WHAT HE SEES WITH THE SEIZURE
      22    IS THAT HE RECOMMENDS OR AT LEAST HE ORDERS THE TREATMENT OF
      23    THE SEIZURE WITH AN I.V. OF DILANTIN AND HE GIVES THE
      24    PATIENT -- HE ORDERS ATIVAN, AS I RECALL, WHICH IS DOWN
      25    HERE.  SUBSEQUENTLY, THE DEFENDANT COMES IN AND


                                                                       4403



       1    HE DISCONTINUES THE ATIVAN.  HE TAKES IT AWAY AND ORDERS TWO
       2    MILLIGRAMS OF MORPHINE TO BE ADMINISTERED TO THIS PATIENT.
       3    WE SEE A PERIOD OF TIME HERE BETWEEN THE 26TH AND 27TH AND I
       4    SUSPECT ON THE 28TH -- OR 29TH, EXCUSE ME -- IS WHEN WE HAVE
       5    THE CONVERSATION WITH MERLIN LARSEN AND DR. WEITZEL WHERE
       6    DR. WEITZEL TELLS MERLIN, YOUR MOTHER IS DYING.  SHE'S DYING
       7    AND WE DON'T WANT TO TAKE ANY HEROIC MEASURES.
       8         THERE WAS NO DISCUSSION, AS I RECALL, FROM THE
       9    TESTIMONY OF MERLIN OR THE PHYSICIAN OR THE DEFENDANT, FOR
      10    THAT MATTER, AS TO EXACTLY WHAT WAS IN THAT CONVERSATION
      11    EXCEPT HER CHILDREN WAS OF THE IMPRESSION THAT SHE WAS
      12    DYING.  THERE WAS NO INDICATION THAT SHE WAS -- WHAT SHE WAS
      13    DYING FROM.  AND THE RECOMMENDATION AND THE INSTRUCTIONS AND
      14    LATER THE DIRECTIONS OF THIS PHYSICIAN ARE, WE'LL GIVE HER
      15    COMFORT CARE.  WE STOP ALL OTHER MEDICATIONS.  AND NOW WE
      16    JUST START GIVING HER MORPHINE.
      17         WELL, LOOK WHAT HAPPENS ON THE ACTIVITY CHART, LADIES
      18    AND GENTLEMEN.  BAM BAM BAM, SHE'S GIVEN 15 MILLIGRAMS THE
      19    FIRST DAY, 35 MILLIGRAMS THE SECOND DAY, 45 MILLIGRAMS THE
      20    THIRD DAY, 45 MILLIGRAMS THE FOURTH DAY, AND 140 MILLIGRAMS
      21    THE LAST DAY, 140 MILLIGRAMS IS ORDERED.
      22         I NEED TO CLARIFY BECAUSE WE HAVE, SEE, THESE LITTLE
      23    WHITE SPACES HERE ON THE CHART.  WHAT THAT WAS WAS THE
      24    NURSES WITHHOLDING THE MORPHINE BECAUSE THE RESPIRATION RATE
      25    WAS SO LOW.  THEY WERE FEARFUL OF CAUSING HER DEATH.  LET ME


                                                                       4404



       1    SHOW YOU SOMETHING.  IT'S IN THE RECORD.  FIRST OF ALL, THIS
       2    IS THE NURSING NOTES.  ROUTINE MORPHINE, M.S. HELD TIMES
       3    THREE DUE TO RESPIRATIONS FIVE TO EIGHT.  NOW, THIS IS ON
       4    THE 3RD.  LOOK AT THE NEXT NOTE IN FROM DR. WEITZEL ON THE
       5    3RD.  DESPITE FIVE MILLIGRAMS OF I.M. MORPHINE AT 7:30 AND
       6    9:30, PATIENT HAS NOT RESPONDED AT ALL.  EYES OPEN,
       7    GROANING, PERHAPS SOME PAIN.  UNFORTUNATELY, NURSING STAFF
       8    HAVE BEEN HOLDING M.S. FOR LOW RESPIRATION RATE.
       9         WAS IT WRONG FOR THE NURSING STAFF TO WITHHOLD THE
      10    MORPHINE FOR THE LOW RESPIRATION RATE?  THAT'S WHAT THEY
      11    HAVE BEEN TAUGHT.  IF YOU DON'T WITHHOLD IT, YOU MAY KILL
      12    THE PATIENT.  UNFORTUNATELY, NURSING STAFF HAVE BEEN HOLDING
      13    M.S. FOR LOW RESPIRATION RATE.  REMAINS UNRESPONSIVE TO ANY
      14    QUESTIONS AND THEN WHAT DOES HE DO?  HE ORDERS 25 MILLIGRAMS
      15    OF MORPHINE NOW.  CONTINUE THE 5 MILLIGRAMS EVERY THREE
      16    HOURS.  AS YOU RECALL, AGAIN, THE ADMINISTRATIVE EFFECTS OF
      17    GIVING MORPHINE EVERY THREE HOURS.  NOT ONLY THAT, BUT ON
      18    THAT SAME DATE, HE ORDERS AN ADDITIONAL 30 MILLIGRAMS IT
      19    LOOKS LIKE 11 O'CLOCK.  AN ADDITIONAL 30 MILLIGRAMS AT 1445
      20    IN ADDITION TO ALL OF THE OTHER SHOTS THAT ARE BEING
      21    ADMINISTERED TO THIS PATIENT.  CAUSE OF DEATH.  IS THAT
      22    CONSISTENT WITH MORPHINE TOXICITY?  YOU DON'T THINK THERE
      23    WAS ANY INTENT TO CAUSE HER DEATH?  JUST LOOKING AT THAT
      24    CHART THERE'S NO QUESTION THAT THAT WAS THE INTENT OF THIS
      25    PHYSICIAN.


                                                                       4405



       1         I FORGOT TO SHOW YOU SOMETHING ELSE.  PATIENT -- THIS
       2    IS ON 1/4.  THIS IS AFTER JUDITH LARSEN DIES.  PATIENT GIVEN
       3    LARGE AMOUNTS OF MORPHINE YESTERDAY P.M. FOR COMFORT.
       4    FINALLY SHE EXPIRED AT 8 P.M.  FINALLY SHE EXPIRES, EVIDENCE
       5    OF INTENT TO CAUSE DEATH.  I WOULD SUBMIT IT'S CLEARLY
       6    EVIDENCE OF INTENT TO CAUSE DEATH.
       7         YOUR HONOR, IF YOU WOULD LIKE TO TAKE A BREAK AT THIS
       8    TIME.
       9             THE COURT:  LADIES AND GENTLEMEN, WHAT WE WILL DO,
      10    I WOULD LIKE TO TAKE A TEN-MINUTE BREAK.  LET THE COURT
      11    REPORTER HAVE SOME TIME OFF HERE.  IT IS YOUR DUTY DURING
      12    THAT TIME NOT TO CONVERSE AMONG YOURSELVES OR TO CONVERSE
      13    WITH OR ALLOW YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON
      14    ON THE SUBJECT OF TRIAL.  AGAIN, IT'S YOUR DUTY NOT TO FORM
      15    OR EXPRESS ANY OPINION UNTIL THE CASE IS FINALLY SUBMITTED
      16    TO YOU AFTER YOU'VE HEARD ALL OF THE CLOSING ARGUMENTS.  SO
      17    IF YOU COME BACK AT ABOUT FIVE TO.
      18             (COURT IN RECESS.)
      19             (JURY RETURNS TO THE COURTROOM AT 11 O'CLOCK.)
      20             THE COURT:  THE RECORD WILL REFLECT THAT THE JURY
      21    HAS RETURNED.  YOU LIKE TO CONTINUE, MR. WILSON.
      22             MR. WILSON:  THANK YOU, YOUR HONOR.  JUST A COUPLE
      23    MORE COMMENTS ABOUT JUDITH LARSEN.  SHE EXPIRED ON JANUARY
      24    THE 3RD AT ABOUT 8 -- 8:10 P.M.  AND ON THAT DATE IT
      25    INDICATED ON THE CHART, IT SAYS, RECEIVED 130 MILLIGRAMS OF


                                                                       4406



       1    MORPHINE.  LAST MORPHINE ADMINISTERED TO HER WAS
       2    ADMINISTERED ABOUT IN ADDITION TO A 6:30 P.M. SHOT,
       3    APPARENTLY SHE RECEIVED AN ADDITIONAL 6:30 P.M. SHOT OF
       4    15 MILLIGRAMS OF BOTH GIVEN BY NURSE RICHARD CLARK.  AND
       5    THEN SHE EXPIRES A SHORT TIME, I THINK IT WAS ABOUT TWO
       6    HOURS, THEREAFTER.
       7         KEEP IN MIND A COUPLE OF THINGS HERE.  YOU HAVE ELLEN
       8    ANDERSON DYING ON THE 30TH.  NOW WE HAVE JUDITH LARSEN DYING
       9    ON THE 3RD OF JANUARY.  IN CONNECTION WITH ELLEN ANDERSON'S
      10    CASE, IN REVIEWING THAT CASE, I WOULD SUBMIT TO YOU THAT THE
      11    ONLY DRUG THAT ELLEN ANDERSON WAS ADMINISTERED OF ANY RISKY
      12    NATURE AT THAT TIME WAS THE MORPHINE.  TO ME THAT IS THE
      13    SMOKING GUN.  NOW, IF ANYTHING, IF THE DEFENDANT WERE TO
      14    CLAIM SOME IGNORANCE ABOUT THE FACT OF THE RISK OF DEATH OF
      15    USING MORPHINE, IF ANYTHING SHOULD HAVE ALERTED HIM TO THAT
      16    FACT, IT WAS ELLEN ANDERSON.  IN TERMS OF JUDITH LARSEN, HE
      17    CONTINUES WITH THE PATTERN OF ADMINISTERING MORPHINE, ONLY
      18    IN THIS CASE THE AMOUNTS ARE TREMENDOUS.  I MEAN, THEY ARE
      19    EXCESSIVE EVEN BY HIS OWN ADMISSION.  IN HIS NOTE HE SAYS
      20    LARGE AMOUNTS.
      21         NEXT WE HAVE THE CASE OF MARY CRANE.  MARY CRANE,
      22    YOU'LL RECALL, WAS ADMITTED ON DECEMBER 28 AND AT THE TIME
      23    OF HER ADMISSION THERE IS SOME NOTATIONS IN THE RECORD THAT
      24    SHE HAD BEEN SUFFERING FROM CHRONIC BACK PAIN OR LOW BACK
      25    PAIN, AS I RECALL.  AND THE DEFENSE HAS SUBMITTED AN EXHIBIT


                                                                       4407



       1    TO YOU -- I CAN'T REMEMBER THE NUMBER OF THAT EXHIBIT --
       2    WHICH SHOWS MARY CRANE'S MEDICATION RECORDS ALONG WITH A
       3    SUMMARY OF HER MEDICATION RECORDS AS IT PERTAINS TO PAIN
       4    KILLERS.
       5         YOU'LL NOTE AS YOU REVIEW THAT EXHIBIT IN YOUR
       6    DELIBERATIONS, THAT MARY CRANE WAS GIVEN THE EQUIVALENT OF
       7    ABOUT ONE PAIN PILL A DAY.  YOU SHOULD ALSO NOTE THAT IN
       8    DR. HARE'S TESTIMONY THAT THAT WAS A LOW DOSAGE AMOUNT AND
       9    THAT THE ADMINISTRATION OF THAT PARTICULAR SUBSTANCE OVER
      10    THAT TIME PERIOD WOULD NOT MAKE HER OPIOID TOLERANT.
      11    REMEMBER THAT TERM, MEANING SOME TOLERANCE TO THE USE OF AN
      12    OPIOID TYPE C.N.S. DEPRESSANT SUCH AS MORPHINE.
      13         NOW, MARY CRANE'S CASE IS A LITTLE BIT DIFFERENT
      14    BECAUSE WE HAVE THE INTRODUCTION RIGHT FROM THE VERY START
      15    OF A DURAGESIC PATCH.  DURAGESIC PATCH.  FIRST OF ALL YOU
      16    NEED TO BE REMINDED THAT -- AND THIS WAS THE P.D.R. DOCUMENT
      17    THAT DR. HARE REFERRED TO -- THIS SHOWS A REFERENCE WITH
      18    ORAL MORPHINE IN MILLIGRAM AMOUNTS AS COMPARED TO THE
      19    VARIOUS MICROGRAM PATCHES OF DURAGESIC PATCH.  DR. HARE
      20    TESTIFIED THAT THE CONVERSION RATE BETWEEN THESE IS
      21    APPROXIMATELY ONE-THIRD.  SO YOU'VE GOT A 25 MICROGRAM PATCH
      22    ON.  IT WOULD BE EQUIVALENT TO 15 TO 45 MILLIGRAMS OF
      23    MORPHINE A DAY WOULD BE THE CONVERSION RATE.  THE DEFENDANT
      24    TESTIFIED THAT THAT CONVERSION RATE WOULD PROBABLY BE LOWER
      25    OR MAYBE APPROXIMATELY THE LOW END OF THAT PARTICULAR SCALE.


                                                                       4408



       1         NOW, WE NOTE FROM THE RECORDS THAT INITIALLY A 25
       2    MICROGRAM PATCH WAS PRESCRIBED THAT DID NOT GET PLACED UPON
       3    MARY CRANE.  SUBSEQUENTLY THAT WAS UPPED BY THE DEFENDANT TO
       4    50 MICROGRAMS.  SO THE MINUTE SHE WOULD HAVE -- SHE WOULD
       5    HAVE ON BOARD THE EQUIVALENT OF SOME 15 MILLIGRAMS TO ABOUT
       6    45 MILLIGRAMS A DAY OF MORPHINE.  EXCUSE ME.  WHEN SHE WAS
       7    GIVEN THE 50 SHE WOULD HAVE THE EQUIVALENT OF ABOUT 45 TO
       8    APPROXIMATELY 75 MILLIGRAMS OF MORPHINE PER DAY.
       9         NOW, THE DURAGESIC PATCH, AS HAS BEEN TESTIFIED, WORKS
      10    AS IT'S ABSORBED INTO THE BODY.  AND AS DR. HARE TESTIFIED,
      11    IT TAKES ABOUT 18 HOURS FOR THAT TO REACH ITS MAXIMUM LEVEL
      12    AND THEN ITS MAINTAINED FOR THREE DAYS AND THEN A NEW PATCH
      13    IS PLACED ON IT SO THAT YOU HAVE A CONTINUOUS LEVEL OF THOSE
      14    DOSAGES OVER THAT PERIOD OF TIME.  AGAIN, OTHER C.N.S.
      15    DEPRESSANTS ARE GIVEN TO THE PATIENT AND SHE HAS THE
      16    ADMINISTRATIVE EFFECT OF THOSE.
      17         AND AS YOU CAN LOOK AT THE CHART -- I'M LOOKING FOR THE
      18    POINTER HERE.  THERE IT IS -- IF YOU LOOK AT THE CHART YOU
      19    CAN SEE THAT THERE'S AN ESCALATING INCREASE IN THE DOSAGES.
      20    NOW MARY CRANE, SHE HAS THAT FIRST DURAGESIC PATCH ON HERE
      21    ON THE 31ST.  SHE'S GIVEN, IN ADDITION TO THE SERZONE AND
      22    RISPERDAL AND TRAZODONE, SHE'S GIVEN ATIVAN.  THAT'S ADDED
      23    TO IT.  THIS IS THE DATE THAT THE PATCH CHANGES AND SHE GETS
      24    AN ADDITIONAL PATCH HERE.  I FORGOT TO NOTE THERE WAS A
      25    PATCH THAT FELL OFF BACK HERE AND THEN ANOTHER ONE WAS


                                                                       4409



       1    PLACED ON.  SO YOU HAVE SOME MORE ADMINISTRATIVE EFFECTS
       2    FROM THAT STANDPOINT.
       3         BUT THEN WE GET OVER HERE TO THE 1ST AND THAT'S THE
       4    FIRST EVENT THAT I THINK OF ANY SIGNIFICANCE IN THE MEDICAL
       5    RECORDS THAT WE SEE.  AND THAT'S THE DATE THAT THE NURSE
       6    NOTES THE VAGINAL FISTULA AND SHE CALLS IN DR. DIENHART TO
       7    CONSULT ON THAT DATE.  AND I THINK IT'S IMPORTANT THAT
       8    THERE'S NOTHING IN THE NOTE THAT REFLECTS THAT THIS PATIENT
       9    WAS EXPERIENCING ANY PAIN WITH THAT.  THE NURSE NOTES IT
      10    BECAUSE SHE SEES WHAT THEY CALL A VAGINAL STOOL.
      11         SO DR. DIENHART IS CALLED IN AND HE SEES THIS AND SO HE
      12    CALLS IN DR. MEEKS.  DR. MEEKS COMES IN THE FOLLOWING DAY ON
      13    JANUARY THE 2ND.  AND HE MAKES HIS -- DOES HIS CONSULT.  AND
      14    AS HE TESTIFIED TO ON THE STAND, HE DID NOT NOTE ANY
      15    INFECTION IN HIS NOTES AND HE SAID, I WOULD HAVE PROBABLY
      16    WRITTEN THAT IN MY NOTE HAD I NOTED IT.  NOR DID HE NOTE
      17    ANYTHING RELATIVE TO ANY PAIN THAT THE PATIENT WAS
      18    EXPERIENCING AT THAT TIME.
      19         THE FOLLOWING DAY ON THE 3RD, AS I RECALL, THE NOTES
      20    REFLECT THAT DR. WEITZEL WAS -- THAT DR. DIENHART BE
      21    CONSULTED BECAUSE OF MEEKS' NOTE ABOUT DIAGNOSIS WITH
      22    SURGERY AND HE WANTED HER TO BE EVALUATED AS TO HER
      23    CONDITION BEFORE ANY SURGERY.  THE ONLY THING IN THE RECORD
      24    THAT WE HAVE IS THE NURSE SAYING, WELL, I NOTIFIED
      25    DR. DIENHART'S RECEPTIONIST OF THE PHONE NUMBER, THE PAGER


                                                                       4410



       1    NUMBER FOR DR. WEITZEL.  BUT EVEN THOUGH THE RECOMMENDATION
       2    IS MADE THAT IT COULD BE TREATED AT LEAST FOR A 25 TO
       3    35 PERCENT PROBABILITY WITH ANTIBIOTICS, THERE IS NO
       4    ANTIBIOTICS GIVEN TO THIS PATIENT AT THAT TIME.
       5         SO THEN THE NEXT THING WE SEE IS THAT SHE'S
       6    ADMINISTERED FOR SOME REASON AN EIGHT -- I THINK THERE WERE
       7    TWO SHOTS, ONE 3 MILLIGRAM AND ONE 5 MILLIGRAM OF MORPHINE
       8    ON THE JANUARY 3RD IN ADDITION TO THE DURAGESIC PATCH THAT
       9    SHE ALREADY HAS ON.  THAT MORPHINE CONTINUES INTO THE NEXT
      10    DAY WITH A FIVE MILLIGRAM SHOT, BUT WE ALSO HAVE A NEW DRUG
      11    THAT'S ADDED ALONG WITH THE DAY BEFORE AND THAT'S DEPAKENE.
      12    BUT HERE'S THE DATE THAT THE DURAGESIC PATCH IS NOW
      13    DECREASED.  NOW INCREASED TO 75 MICROGRAMS, EQUIVALENT TO
      14    ABOUT 75 TO 105 MILLIGRAMS OF MORPHINE PER DAY.  THAT'S WHAT
      15    THE CONVERSION CHART INDICATES.
      16         THERE IS ALSO IN THE RECORD, I NEGLECTED TO POINT THIS
      17    OUT, BACK WHEN DIENHART IS INITIALLY CALLED TO CONSULT ON
      18    THE FISTULA, HE NOTES THAT SHE APPEARS TO BE SEDATED.  AND
      19    AT THAT TIME HE RECOMMENDS THAT THE DURAGESIC PATCH BE
      20    DECREASED TO 25 MICROGRAMS.  THAT ORDER AGAIN IS CANCELED BY
      21    DR. WEITZEL AND IT REMAINS AT THE 50 MICROGRAM LEVEL.  WE GO
      22    ON HERE TO JANUARY 5TH.  SHE RECEIVES 10 MILLIGRAMS OF
      23    MORPHINE THAT DAY AND SHE ALREADY HAS ON BOARD THE
      24    EQUIVALENT OF AT LEAST, ACCORDING TO THE CONVERSION CHART,
      25    75 MILLIGRAMS.  SO A TOTAL OF 85 MILLIGRAMS EQUIVALENT TO


                                                                       4411



       1    MORPHINE ON THE JANUARY 5TH.
       2         NOW, YOU CAN SEE FROM THE ACTIVITY LEVEL ON THE CHART
       3    ALL OF A SUDDEN WE'RE STARTING TO SEE THAT THIS PATIENT IS
       4    GOING DOWNHILL AND SHE CONTINUES TO GO DOWNHILL.  SHE
       5    DOESN'T QUITE MAKE IT UP TO THE NORMAL LEVEL.  SHE'S NOT
       6    GIVEN ANY MORPHINE ON THE 6TH.  SHE STILL HAS THE DURAGESIC
       7    PATCH IN PLACE, AND THEN ON THE 7TH THESE ARE THE THINGS --
       8    THE SIGNIFICANT EVENT THAT OCCURRED.  FIRST OF ALL, SHE'S
       9    GIVEN A NEW 75 MICROGRAM PATCH AS THE OTHER ONE'S BEEN ON
      10    THREE DAYS NOW.  SECOND OF ALL, THE PATIENT IS PERCEIVED TO
      11    BE VERY UNRESPONSIVE.  SHE'S DYING.  IT'S ON THIS DATE THAT
      12    DR. WEITZEL HAS HIS FIRST CONTACT, HIS FIRST CONTACT EVER
      13    WITH KAREN BRINGHURST, THE DAUGHTER OF MARY CRANE.
      14         THE FAMILY'S CALLED IN.  DR. DIENHART WAS CONSULTED ON
      15    THIS PARTICULAR EVENT AND DR. DIENHART INDICATES IN HIS NOTE
      16    A NUMBER OF THINGS THAT MAY BE WRONG HERE AND HE TESTIFIED
      17    THAT HE HAD RECOMMENDED TREATMENT.  IT WOULD HAVE TO BE
      18    AGGRESSIVE TREATMENT, BUT THEN HE ALSO TESTIFIED THAT HE
      19    DIDN'T KNOW WHETHER THAT TREATMENT WOULD BE SUCCESSFUL.  BUT
      20    SHE'S DYING.  IT'S EVIDENT SHE'S DYING.  I WOULD SUBMIT TO
      21    YOU, WHY IS SHE DYING AT THIS JUNCTURE HERE?  OUR POSITION
      22    IS THE DURAGESIC PATCH IN COMBINATION WITH THE MORPHINE AND
      23    THE OTHER PSYCHOTROPIC MEDICATIONS THAT ARE ALSO CENTRAL
      24    NERVOUS SYSTEM DEPRESSANTS HAS BROUGHT HER DOWN TO THE POINT
      25    THAT HER FUNCTIONS WOULD REPRESENT THAT SHE IS DYING.


                                                                       4412



       1    LADIES AND GENTLEMEN OF THE JURY, THE QUESTION IS NOT
       2    WHETHER OR NOT ON THE 7TH SHE WAS DYING.  THE QUESTION IS
       3    HOW DID SHE GET TO THE POINT OF DYING.
       4         KAREN TESTIFIES SHE COMES IN, MEETS WITH THE DOCTOR.
       5    THEY HAVE A BRIEF CONVERSATION ASIDE FROM HER SISTER AND
       6    FAMILY WHERE SHE -- THE DOCTOR REPRESENTS TO HER, YOUR
       7    MOTHER IS DYING.  KAREN APPROPRIATELY RESPONDS, WHAT CAN WE
       8    DO FOR HER.  AND THE ANSWER IS, AS I RECALL HER WORDS WAS,
       9    WE CAN GIVE YOUR MOTHER MORPHINE TO HASTEN THE INEVITABLE.
      10         NOW, INTERESTING FACTOR HERE.  HE DOESN'T TELL KAREN
      11    THAT HE'S BEEN ADMINISTERING MORPHINE BEFORE THE 7TH.
      12    THERE'S NO REFERENCE TO THAT.  AND MORPHINE THEN BECOMES THE
      13    DRUG OF CHOICE FOR HIM TO ADMINISTER TO HER TO PRECIPITATE
      14    HER DEATH ALONG WITH THE DURAGESIC PATCH AS WAS TESTIFIED TO
      15    BY DR. HARE, DR. CROOKSTON AND DR. FEHLAUER.  BUT THOSE
      16    DRUGS IN COMBINATION ARE DEADLY.  AND A PSYCHIATRIST WHO
      17    HOLDS HIMSELF OUT AS SPECIALIZED MEDICINE AS GERIATRIC
      18    PSYCHIATRIST WOULD KNOW THOSE THINGS, WOULD KNOW THOSE
      19    COMBINATIONS HAVE THOSE KINDS OF RISKS.  MARY CRANE DIES I
      20    THINK AT AROUND 11:30 THAT NIGHT.  YOU KNOW, THERE'S ALSO --
      21    SO NOW WE HAVE ELLEN ANDERSON, WE HAVE JUDITH LARSEN, AND
      22    NOW WE HAVE MARY CRANE.
      23         I PUT THIS OTHER CHART UP JUST TO REFERENCE WITH YOU
      24    REALLY QUICKLY THE WARNINGS THAT ARE CONTAINED IN THE P.D.R.
      25    AS THEY RELATE TO DURAGESIC PATCH.  FIRST OF ALL, THE P.D.R.


                                                                       4413



       1    RECOMMENDS DOSES GREATER THAN 25 ARE TOO HIGH FOR INITIATION
       2    OF THERAPY IN NONOPIOID TOLERANT PATIENTS AND SHOULD NOT BE
       3    USED TO BEGIN DURAGESIC THERAPY IN THESE PATIENTS.  THE
       4    OTHER PART, WHICH RELATES TO THE PRESCRIBING OF THESE
       5    MEDICATIONS IN COMBINATION, TALKS ABOUT THE FACT -- AND THIS
       6    IS PRECISELY WHAT DR. DIENHART DID -- IT TALKS ABOUT THE
       7    FACT THAT YOU'VE GOT TO DO IT IN CONJUNCTION WITH OTHER
       8    ARGUMENTS.  YOU SHOULD REDUCE IT BY AT LEAST 50 PERCENT.
       9         LYDIA SMITH.  LYDIA SMITH, I THINK, PRESENTS AN
      10    EXTREMELY GOOD EXAMPLE OF THE PATTERN OF CONDUCT OF
      11    CONTINUOUSLY OVERMEDICATING THESE C.N.S. DEPRESSANT DRUGS.
      12    NOW, YOU RECALL LYDIA CAME ON THE UNIT BACK IN DECEMBER 20
      13    OF 1995.  SHE HAS -- IT'S A REAL INTERESTING PATTERN HERE,
      14    BECAUSE AS YOU RECALL, LYDIA HAD EXPERIENCED A STROKE BACK
      15    IN NOVEMBER.  NOW, I THINK THERE'S BEEN TESTIMONY THAT THIS
      16    WAS A SEVERE STROKE, THAT SHE ALMOST DIED.  BUT AS YOU
      17    RECALL THE TESTIMONY OF HER FAMILY MEMBERS, THEY INDICATED
      18    AFTER THE STROKE HAD OCCURRED THAT WHERE SHE WAS STILL AT
      19    THE SOUTH DAVIS COMMUNITY HOSPITAL THAT SHE HAD SOME
      20    EVIDENCE OF APHASIA.  SO NOW DON'T HOLD ME TO THAT BECAUSE
      21    THERE'S SO MANY WORDS FLOATING AROUND HERE.  I MAY HAVE THE
      22    WRONG WORD.  BUT AS I UNDERSTAND IT, IT'S WHERE SHE'S -- HER
      23    SPEECH HAS BEEN IMPACTED AND SHE CAN'T SPEAK AS CLEARLY.
      24         BUT SHORTLY AFTER THAT LYDIA IS UP AND RUNNING AROUND.
      25    SHE'S CAUSING ALL KINDS OF TROUBLE AT THAT SOUTH DAVIS


                                                                       4414



       1    COMMUNITY CARE CENTER.  SO MUCH TROUBLE THEY HAD TO GO AND
       2    ASSIGN ONE PERSON TO MANAGE HER SO THAT SHE WOULDN'T ESCAPE
       3    FROM THE UNIT AND SHE WOULDN'T HARM HERSELF OR SHE WOULDN'T
       4    HARM POSSIBLY OTHER PATIENTS.  AND IT WAS THAT BEHAVIORAL
       5    PROBLEM THAT COMES OUT OF THAT ACUTE SETTING WITH THE STROKE
       6    THAT NEEDS TO BE MODIFIED.  BUT YOU ALSO RECALL SHE
       7    TESTIFIED SHE'S STILL ABLE TO PLAY THE PIANO.  SHE WAS STILL
       8    ABLE TO PLAY MUSIC.  SO I WOULD SUBMIT TO YOU I DON'T THINK
       9    THAT THE STROKE AS IT'S BEEN CHARACTERIZED WAS THAT
      10    SIGNIFICANT OF AN EVENT IN LYDIA SMITH'S LIFE EXCEPT TO
      11    PRECIPITATE SOME CHANGES IN HER BEHAVIORAL PATTERN.
      12         SHE GOES ONTO THE UNIT IN DECEMBER AND, YES, THE FAMILY
      13    OBVIOUSLY IS CONCERNED ABOUT GETTING THE BEHAVIOR PATTERN
      14    UNDER CONTROL SO THAT SHE CAN GO BACK TO A CARE CENTER, SIT
      15    AND BE ADEQUATELY TAKEN CARE OF IN A DIFFERENT SETTING.  AND
      16    THIS IS A SPECIALTY UNIT.  YOU ARE NOT SUPPOSED TO BE HERE
      17    FOR THE REST OF YOUR LIFE.  WE SEE IN LYDIA'S CASE A VARIETY
      18    OF PSYCHOTROPIC MEDICATIONS BEING ADMINISTERED TO HER.  YOU
      19    SEE OVER THE COURSE AND EVENTS HER DESIRE AT THE HOSPITAL
      20    THAT THOSE INCREASE, AND IN PARTICULAR IT'S INTERESTING TO
      21    SEE THE DOSAGES OF HALDOL ARE ADMINISTERED TO HER AROUND
      22    JANUARY 3RD AND IT'S AT THAT TIME YOU START TO SEE THE
      23    PATTERN IN THE ACTIVITY REALLY GOING DOWN.  THE LEVEL OF HER
      24    ACTIVITY GOES FROM A HIGH IN ONE DAY DOWN TO A LOW.  A HIGH
      25    DOWN TO A LOW.  ON JANUARY 5TH ON THROUGH THERE'S A PERIOD


                                                                       4415



       1    OF TIME HERE ON THE 6TH WHERE SHE SEEMS TO FLUCTUATE, AND
       2    THEN ON THE 7TH YOU SEE A SUBSTANTIAL DROP IN HER ACTIVITY
       3    TO THE POINT YOU DON'T SEE ANYTHING COMING BACK OUT OF THAT.
       4    NOW THAT'S ON THE 7TH.
       5         YOU'LL REMEMBER THE TESTIMONY OF THE FAMILY MEMBERS TO
       6    THE EFFECT THAT THEY CAME INTO VISIT HER, I THINK IT WAS ON
       7    THE 6TH.  THEY FOUND HER IN THE CAFETERIA.  THEY FOUND HER
       8    SLUMPED OVER IN HER CHAIR, THEY FOUND FOOD OUT OF HER MOUTH,
       9    COMING OUT OF HER MOUTH.  THEY IMMEDIATELY GOT ASSISTANCE
      10    AND PUT HER BACK INTO BED.  AND THE TESTIMONY IS CONSISTENT
      11    FROM THAT DAY FORWARD THEY DID NOT NOTE ANY IMPROVEMENT.
      12         HOWEVER, ON THE NIGHT OF THE 7TH THEY ARE CALLED INTO A
      13    FAMILY MEETING WITH DR. WEITZEL.  AND AT THAT TIME, THAT
      14    FAMILY MEETING OF WHICH I DON'T KNOW WHICH ONE OCCURRED
      15    FIRST, BUT IF YOU'LL REMEMBER RIGHT MARY CRANE'S FAMILY
      16    MEETING WAS ALSO ON THE 7TH.  SO NOW WE GOT TWO PATIENTS
      17    BOTH DYING AT THE SAME TIME.  THEY COME INTO THE MEETING
      18    WITH DR. WEITZEL AND AT THAT MEETING, AGAIN, THE FAMILY IS
      19    TOLD THAT THEIR MOTHER IS DYING AND THEY CAN SEE HER LAYING
      20    THERE UNCONSCIOUS.  AND THIS GOES TO THE TYPE OF STATE.  I
      21    THINK THERE WAS SOME TESTIMONY TO THE FACT THAT SHE RAISED
      22    HER ARM SORT OF FEEBLY AT ONE TIME, BUT SHE'S LAYING THERE,
      23    THEY CAN SEE.  I MEAN, IT DOESN'T TAKE A GENIUS TO FIGURE
      24    OUT THAT THEIR MOTHER IS IN SERIOUS CONDITION AND THAT'S
      25    CONFIRMED BY A PHYSICIAN, A PHYSICIAN IN CHARGE OF HER CARE


                                                                       4416



       1    AND DIRECTING HER CARE AT THIS TIME.  WHAT ARE THEY TOLD.
       2    WELL, AS I UNDERSTAND, THEY WERE WEREN'T TOLD ANYTHING ABOUT
       3    WHAT THEIR MOTHER WAS DYING FROM.  THEY WERE JUST TOLD THAT
       4    SHE WAS DYING.
       5         AT THAT SAME TIME, KENT SMITH EXECUTES A MEDICAL
       6    TREATMENT PLAN WHICH IS AN ADVANCE DIRECTIVE IN CONNECTION
       7    WITH HIS MOTHER'S TREATMENT, AN INDICATION TO WITHHOLD
       8    CERTAIN THINGS.  SO THEY ARE TOLD SHE'S GOING TO GET COMFORT
       9    CARE.  WHAT KIND OF COMFORT CARE IS THAT?  WE'RE GOING TO
      10    GIVE HER MORPHINE FOR THE PAIN.  I DON'T THINK THERE'S
      11    ANYTHING IN THAT RECORD THAT INDICATES THAT THIS PATIENT WAS
      12    SUFFERING ANY PAIN.
      13         AS I RECALL THE TESTIMONY OF DR. WEITZEL, HE RELATED
      14    THAT IT'S VERY PAINFUL TO HAVE A DEATH BY DEHYDRATION.  YOU
      15    CAN'T DO AN I.V., YOU CAN'T HYDRATE, THEREFORE MORPHINE IS
      16    GIVEN FOR COMFORT CARE.  IT'S SIGNIFICANT TO NOTE SHE'S
      17    GIVEN TWO 5 MILLIGRAM SHOTS ON THE 7TH.  YOU HAVE THE
      18    PATTERN WHERE SHE IMMEDIATELY DROPS DOWN AND HER LEVEL OF
      19    THE NEXT DAY SHE'S GIVEN THE EQUIVALENT OF 30 MILLIGRAMS.
      20    THERE IS TWO 5 MILLIGRAM SHOTS EARLY IN THE MORNING AND THEN
      21    PURSUANT TO THE DEFENDANT'S ORDERS, MORPHINE IS INCREASED TO
      22    10 MILLIGRAMS.
      23         NOW, REMEMBER THE TESTIMONY FIRST OF ALL SHARON SMITH.
      24    SHE TESTIFIES THAT SHE COMES IN AND SHE OBSERVES A SHOT
      25    BEING ADMINISTERED TO HER MOTHER-IN-LAW IN THE MORNING WHEN


                                                                       4417



       1    SHE'S THERE TO ATTEND TO HER.  BONNIE COMES IN AT 12
       2    O'CLOCK, AROUND NOON.  BONNIE SAYS THAT DR. WEITZEL COMES IN
       3    AT THAT TIME, TELLS HER THAT HE'S GOING TO HAVE HER GIVE A
       4    10 MILLIGRAM SHOT OF MORPHINE.  SHE QUESTIONS HIM ON THAT
       5    AND AT THAT TIME SAYS, WHY?  WHY?  SHE'S NOT IN ANY PAIN.
       6    SHE'S JUST LAYING THERE.  AND AT THAT POINT HE MAKES SOME
       7    EXCUSES, LEAVES TO GO TO WEST VALLEY OR WHATEVER AND THEN A
       8    FEW MINUTES LATER IN WALKS A NURSE.  BONNIE TRIES TO PROTEST
       9    AND BEFORE SHE CAN EVEN GET UP ON HER FEET, THE NURSE ROLLS
      10    THE PATIENT OVER AND GIVES HER THE SHOT OF MORPHINE.  AND
      11    WHAT HAPPENS?  45 MINUTES LATER SHE'S DEAD.  CAUSATION.  IS
      12    THAT NOT CONSISTENT WITH CAUSE OF DEATH?
      13         ENNIS ALLDREDGE.  NOW, WE'VE HAD FOUR PATIENTS DIE UP
      14    TO THIS POINT.  WE COME TO ENNIS ALLDREDGE WHO'S ADMITTED ON
      15    JANUARY THE 10TH.  AND IMMEDIATELY BECAUSE OF THE BEHAVIORAL
      16    PATTERN THAT HE'S EXHIBITED AT THE CARE CENTER UP IN LOGAN,
      17    HE'S PLACED ON SUBSTANTIAL DOSAGES OF HALDOL.  HE RECEIVES A
      18    HALF DOSE OF ATIVAN.  AND THERE'S OTHER DRUGS ORDERED BUT
      19    THEY WERE NOT GIVEN.  THE NEXT DAY ON THE 11TH HE RECEIVES
      20    SOME ADDITIONAL PSYCHOTROPIC MEDICATIONS BUT IT'S NOT UNTIL
      21    THE 12TH THAT WE SEE A DISTINCT PATTERN START TO DEVELOPE
      22    WITH ENNIS BECAUSE HE'S GIVEN MORE HALDOL, SOME BUSPAR, MORE
      23    ATIVAN.  AND IT'S ON THAT DATE THAT ENNIS ALLDREDGE IS TAKEN
      24    DOWN FOR AN M.R.I.  AND HE'S -- THE RADIOLOGY REPORT COMES
      25    BACK.  DR. WEITZEL READS THAT RADIOLOGY REPORT THE FOLLOWING


                                                                       4418



       1    MORNING ON JANUARY 13.
       2         THE RADIOLOGY REPORT -- AND YOU CAN SEE IN THE RECORDS
       3    THAT YOU'LL HAVE INDICATED THAT IT IS COMPROMISED.  IT'S
       4    COMPROMISED.  THE RADIOLOGIST IS SAYING, HEY, I CANNOT TELL
       5    FOR SURE WHETHER OR NOT THIS INDIVIDUAL SUFFERED A STROKE.
       6    THERE ARE SOME FINDINGS THAT MIGHT INDICATE THAT, BUT THERE
       7    WAS SO MUCH MOVEMENT BY MR. ALLDREDGE, IT'S A COMPROMISED
       8    REPORT.  WHAT DO WE HAVE?  THE RESPONSE TO THAT BY THE
       9    DEFENDANT IS CALL VONDA ALLDREDGE.  AND ACCORDING TO HIS
      10    TESTIMONY, SHE AGREED TO TAKE ENNIS OFF EVERYTHING AND TO
      11    ADMINISTER COMFORT CARE.  AND THAT COMFORT CARE AGAIN
      12    BECOMES MORPHINE.
      13         IF MORPHINE -- NOW, THE DEFENDANT KNOWS THAT FOUR
      14    PATIENTS BEFORE THAT HAVE BEEN ADMINISTERED MORPHINE AND
      15    DURAGESIC PATCH IN THE CARE OF MARY CRANE.  ALL HAVE DIED.
      16    SO HE ADMINISTERS MORPHINE TO ENNIS ALLDREDGE.  IN ADDITION
      17    TO THE MORPHINE, HE ALSO GIVES ATIVAN, ANOTHER CENTRAL
      18    NERVOUS SYSTEM DEPRESSANT.  ON THE 13TH ENNIS RECEIVES A
      19    TOTAL OF 60 MILLIGRAMS OF MORPHINE.  LOOK AT THE CHART, THE
      20    ACTIVITY, HE'S DOWN AT THE BOTTOM.  ON THE 14TH YOU'LL NOTE
      21    AGAIN A WHITE SPACE HERE.  THAT MORPHINE WAS WITHHELD.  OF
      22    COURSE, IT WAS WITHHELD AT THE END OF HIS LIFE OR TOWARD THE
      23    END OF HIS LIFE, BUT HERE YOU HAVE A DISTINCT PATTERN AGAIN.
      24    HE DROPS DOWN.  I WOULD SUBMIT TO YOU CAUSATION.  IS THIS
      25    SUPPORTIVE OF THE TESTIMONY OF THE EXPERTS IN THIS MATTER


                                                                       4419



       1    FOR THE STATE?  I THINK IT DEMONSTRATES THE WHOLE PICTURE,
       2    LADIES AND GENTLEMEN.  THE TESTIMONY DEMONSTRATES THE
       3    PICTURE OF CAUSATION AND IT ALSO DEMONSTRATES THE KNOWLEDGE
       4    THAT THIS PHYSICIAN HAS.
       5         WHEN YOU GET INTO YOUR DELIBERATIONS, ONE OF THE THINGS
       6    YOU CAN DO IS WHETHER WE HAVE THE FIVE DEATHS IN CONJUNCTION
       7    WITH ONE ANOTHER, YOU CAN INFER CONDUCT FROM THE OTHER
       8    DEATHS IF IT'S CONSISTENT WITH THE CONDUCT IN A PARTICULAR
       9    CASE.  THIS IS CONSISTENT CONDUCT.  THE ACT OF DEATH IN
      10    THESE CASES IS PRIMARILY MORPHINE.  THE MECHANICS OF DEATH
      11    THAT PRECIPITATES THE DYING PROCESS IS USUALLY THE OTHER
      12    MEDICATIONS THAT ARE ADMINISTERED IN EXCESSIVE MANNER.  I'VE
      13    GONE ON A LONG TIME HERE, BUT I HOPE IT'S HELPED TO CLARIFY
      14    WHAT THE STATE FEELS IS THE IMPORTANT EVIDENCE THAT
      15    DEMONSTRATES THIS DEFENDANT'S CONDUCT IN CAUSING THESE
      16    DEATHS.
      17         THE LAST SECTION THAT I NEED TO TALK ABOUT FOR A FEW
      18    MINUTES IS INTENT.  YOU HAVE KNOWLEDGE, YOU HAVE CAUSATION
      19    AND YOU HAVE INTENT.  INTENT IS -- AS YOU ARE INSTRUCTED IN
      20    INSTRUCTION 26, INTENT IS BEING A STATE OF MIND AS SELDOM IS
      21    ACCEPTABLE BY PROFFER, BY DIRECT AND POST-EVIDENCE AND MAY
      22    BE ORDINARILY -- AND IT MAY ORDINARILY BE INFERRED FROM
      23    ACTS, CONDUCT, STATEMENTS AND CIRCUMSTANCES.  THAT MAKES
      24    SENSE.
      25         HOW DO I KNOW WHAT'S IN YOUR MIND WHEN YOU DO


                                                                       4420



       1    SOMETHING?  THE ONLY WAY THAT I CAN PERCEIVE WHAT'S IN YOUR
       2    MIND IS BY WHAT YOU DO, OBVIOUSLY.  AND WHAT THIS
       3    INSTRUCTION IS SAYING?  SO WHAT YOU DO IS YOU RELATE THE
       4    CONDUCT AND THEN YOU CAN INFER FROM THAT CONDUCT THE
       5    REQUISITE INTENT.
       6         NOW, THERE IS A COUPLE OF OTHER INSTRUCTIONS THAT GO
       7    ALONG WITH THAT.  AND THE COURT HAS TALKED TO YOU AND YOU'VE
       8    INDICATED OR IT'S INDICATED IN THE INSTRUCTIONS THAT WHEN
       9    YOU REVIEW THIS EVIDENCE AS IT RELATES TO THESES FIVE
      10    INDIVIDUALS YOU HAD, THAT YOU WILL HAVE THE OPPORTUNITY TO
      11    CONSIDER NOT ONLY THE INTENT ASPECT FOR THE CRIME OF MURDER,
      12    WHICH IS INTENTIONALLY, KNOWINGLY OR ACTING UNDER
      13    CIRCUMSTANCES OF DEPRAVED INDIFFERENCE, BUT YOU ALSO HAVE
      14    THE OPPORTUNITY IF YOU DO NOT FEEL THAT THERE IS SUFFICIENT
      15    EVIDENCE TO SUPPORT THE INTENTIONAL AND KNOWING ABILITY, TO
      16    LOOK AT THAT FROM THE STANDPOINT OF CRIMINAL RECKLESSNESS OR
      17    CRIMINAL NEGLIGENCE.  THOSE ARE ALTERNATIVES THAT YOU HAVE
      18    AVAILABLE TO YOU IN MAKING YOUR DECISION.  I DON'T THINK
      19    THAT'S THE EVIDENCE, EVEN THOUGH THE EVIDENCE SUPPORTS THOSE
      20    LESSER INTENT ASPECTS.
      21         IT'S THE STATE'S POSITION THAT THE EVIDENCE CLEARLY
      22    DEMONSTRATES THAT THE DEFENDANT KNEW THAT HE ENGAGED IN
      23    CONDUCT PURSUANT TO HIS KNOWLEDGE OF THE EFFECT OF THESE
      24    DRUGS WITH THE INTENT TO CAUSE A DEATH.  SO I WOULD SUBMIT
      25    TO YOU THAT THE EVIDENCE CLEARLY DEMONSTRATES THAT THIS


                                                                       4421



       1    DEFENDANT ACTED KNOWINGLY AND INTENTIONALLY, AT LEAST IN
       2    RESPECT TO THE FOUR CASES WHICH FROM THE OPENING STATEMENT
       3    WERE CATEGORIZED AS COMFORT CARE CASES.
       4         IN RESPECT TO ELLEN ANDERSON, IN THAT PARTICULAR CASE I
       5    THINK THE CONDUCT IN THIS SETTING IS ONE OF DISREGARD TO THE
       6    POINT THAT IT BECOMES DEPRAVED.  HE DIDN'T EVALUATE.  HE
       7    CALLS IN ON THE TELEPHONE.  IN FACT, IN ALL OF THESE CASES
       8    IF YOU REVIEW THE RECORD YOU'LL FIND THAT A GOOD NUMBER OF
       9    THOSE MEDICATION ORDERS ARE MADE OVER THE TELEPHONE.  THEY
      10    ARE NOT MADE IN RESPECT TO THE PERSONAL EVALUATION OF THE
      11    PATIENT.  THEY ARE MADE OVER THE TELEPHONE BY THIS
      12    PHYSICIAN.  IN A GOOD NUMBER OF THOSE CASES YOU'LL FIND THAT
      13    HE FAILS TO MONITOR EFFECTIVELY.
      14         NOW, IN ONE INSTANCE, IN JUDITH LARSEN, HE TELLS THEM
      15    TO STOP MONITORING HER ANY MORE THAN ONCE EVERY SHIFT.  HE
      16    HAS THIS PATIENT ON MORPHINE.  HE INDICATES THAT THE NURSES
      17    UNFORTUNATELY WERE WITHHOLDING THAT.  AGAIN, AN INTENTIONAL,
      18    KNOWING ACT ON HIS PART.  IT'S CONDUCT THAT HE'S AWARE OF
      19    AND CONDUCT THAT HE'S AWARE OF IN RESPECT TO THE RISKS
      20    ASSOCIATED WITH THAT.
      21         A COUPLE OF OTHER QUICK COMMENTS.  INSTRUCTION NUMBER
      22    37 TALKS ABOUT THE CREDIBILITY OF WITNESSES AND IT SAYS,
      23    "YOU ARE THE SOLE JUDGES OF THE WEIGHT OF THE EVIDENCE,
      24    CREDIBILITY OF THE WITNESSES AND THE FACTS.  IN CONSIDERING
      25    THE TESTIMONY OF A WITNESS YOU MAY CONSIDER THEIR APPEARANCE


                                                                       4422



       1    AND THEIR DEMEANOR, THEIR FRANKNESS AND THEIR CANDOR OR WANT
       2    OF IT, THEIR OPPORTUNITY TO OBSERVE, THEIR ABILITY TO
       3    UNDERSTAND, THEIR CAPACITY TO REMEMBER.  YOU MAY CONSIDER
       4    THE INTEREST, IF ANY IS SHOWN, WHICH ANY WITNESS MAY HAVE IN
       5    THE RESULT OF THIS TRIAL OR ALSO ANY BIAS THEY MAY HAVE OR
       6    ANY MOTIVE OR PROBABLE MOTIVE WHICH ANY WITNESS MAY HAVE TO
       7    TESTIFY FOR OR AGAINST A PARTY."
       8         YOU OUGHT TO INCLUDE THAT INSTRUCTION AND YOU OUGHT TO
       9    CONSIDER IT IN LIGHT OF THE WITNESSES AND ALONG WITH THOSE
      10    WITNESSES, REVIEW THAT SAME INSTRUCTION ALONG WITH ANOTHER
      11    INSTRUCTION YOU ARE GIVEN AS TO EXPERT WITNESSES.
      12         NOW, YOU'VE HAD WHAT, 20 DOCTORS TESTIFY IN THESE
      13    PROCEEDINGS AND WE'VE ALL HEARD MORE MEDICAL TERMINOLOGY WE
      14    PROBABLY EVER WANTED TO HEAR IN OUR LIVES.  BUT DON'T LET
      15    THAT CONFUSE YOU.  DON'T LET THE TESTIMONY CONFUSE YOU
      16    BECAUSE I THINK WHAT YOU HAVE TO DO IS YOU HAVE TO USE YOUR
      17    COMMON SENSE AND YOU HAVE TO LOOK AT THESE PATTERNS OF
      18    CONDUCT THAT THIS DOCTOR HAS ENGAGED IN.
      19         I WOULD RESPECTFULLY SUBMIT TO YOU THAT IN EACH COUNT
      20    THE STATE HAS MET ITS BURDEN OF PROOF BEYOND A REASONABLE
      21    DOUBT.  THAT THE EVIDENCE BEFORE YOU AT THIS TIME
      22    DEMONSTRATES THAT THE DEFENDANT ENGAGED IN A PROCESS OF
      23    EUTHANASIA, A PROCESS THAT IS NOT ALLOWED BY THE LAWS OF THE
      24    STATE OF UTAH.  THAT FOUR OF THESE PATIENTS WERE PUT TO
      25    DEATH BY THE DEFENDANT.  THIS IS NOT A COMFORT CARE CASE,


                                                                       4423



       1    THIS IS NOT A MEDICAL DIRECTIVE CASE, SEEMS TO BE -- SEEMS
       2    TO ME VERY DIFFICULT TO EXPLAIN A MEDICAL DIRECTIVE CASE OF
       3    ACTING IN GOOD FAITH.  HOW CAN YOU ACT IN GOOD FAITH AND
       4    COMMIT MURDER?  HOW CAN YOU TAKE THE LIFE OF A HUMAN BEING
       5    AND ACT IN GOOD FAITH?  THOSE ARE THE QUESTIONS AND WE THINK
       6    THE FACTS DEMONSTRATE BEYOND ANY REASONABLE DOUBT THAT HE
       7    ENGAGED IN THE PROCESS AND THAT HE ACTED WITH DEPRAVED
       8    INDIFFERENCE WHEN IT CAME TO ELLEN ANDERSON IN CAUSING HER
       9    DEATH IN THE FASHION THAT HE CAUSED IT.  AND I WOULD
      10    RESPECTFULLY REQUEST THAT YOU RETURN A VERDICT OF GUILTY AS
      11    CHARGED ON ALL FIVE COUNTS.  THANK YOU.

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