Assistant Solicitor Mary Katherine Schmutz
I was never a prosecutor, but I have a lot of respect for what they do. Quite a few became my friends although we we adversaries in the courtroom. I once helped Assistant Solicitor Kate Schmutz, a seasoned prosecutor, convict a real creep who showed every sign he was well on his way to becoming a serial killer.
My partner, David Pearlman, represented the husband of a young woman who was severely beaten during the armed robbery of the convenience store where she worked. Beaten so severely she had to have a craniotomy to relieve cerebral swelling for a subdural hematoma. Her neurosurgeons kept her in an induced coma and ventilated during her post-op recovery. David was representing her husband to recover workers’ compensation benefits for the woman and her family.
One night a third-year medial student, doing a clinical rotation at the hospital, observed a male nurse coming out from behind our unconscious woman’s hospital bed appearing to be pulling up his scrubs. The student reported the incident and the police were called. The nurse denied any wrongdoing and the immediate investigation revealed no obvious signs of a sexual or physical assault of any kind. A Sexual Assault Forensic Exam (SAFE) was performed but it also proved negative for physical evidence. Still, the nurse didn’t have any plausible reason for being in the unconscious woman’s room and his denial anything happened was directly contradicted by the medical student. I don’t know what they were hoping to find, but the detective obtained a search warrant to search the nurse’s house and what he found sent chills up everybody’s spines.
The nurse had built himself a little operating room in his back room. Blacked out windows, a stainless steel tray of neatly arrayed surgical scapels, scissors, bone saws, spreaders, and clamps. Syringes and little vials of Propofol, Versed, Ativan, Xanax, Valium, Rocuronium, Succinylcholine, Phenylephrine, and Ephedrine all neatly arranged on a sideboard nearby. Most disturbing of all were his handwritten notebooks found in his bedroom filled with stories of unconscious woman being operated on, sexually assaulted, and killed. The nurse’s explanation he was doing research to write a book about a doctor who was a serial killer placated exactly no one.
The problem from a legal standpoint was no one actually saw the nurse so much touching the unconscious woman, never mind sexually assaulting her. The student only said he saw what appeared to be the nurse pulling up his scrubs, although he was pretty adamant that’s what he saw. Forensic testing was all negative and, of all the drugs found in his little operating room, only Versed, Valium, and Xanax were scheduled drugs and they were only Schedule IV drugs the possession of which was a misdemeanor that carried only six months, a $1,000.00 fine, or both. If a judge maxed the nurse out the maximum penalty he was facing was only eighteen months, eligible for parole after serving only four and a half months. The nurse’s criminal defense attorney was pushing hard for a plea bargain for probation and the unconscious woman’s husband felt like the whole incident was being swept under the rug. My partner, David, was unfamiliar with the ins and outs of criminal Law and asked me to look into the case.
Kate was frustrated because it was looking like the creep would slip away and afraid he’d do it again for real if given half a chance. She was glad for any help I could offer and let me review the case file. As a lawyer, I saw the same problems Kate saw but I knew a forensic toxicologist we could turn to for help. Roger earned his Ph.D. in Biochemistry and Molecular Biology at Yale before attending the Medical University of South Carolina to become an M.D. You can take my word for him being way out smart, eccentric, and not the easiest medical expert I ever worked with, but he was one of the best.
Roger and his wife were home schooling six or seven children which meant Roger much preferred for me to take him to the Blind Tiger Pub for a cold draft or two or three while we discussed cases rather than going home. I’ll bet Roger was every bit a stickler and demanding with those kids at home as he was working with us lawyers, but, after we’d done everything Roger asked, he’d give us rock-solid expert testimony supporting causation to the exclusion of all other possible causes. He helped David win what I believe was the first dirty plant case winning compensation for the myriad of afflictions suffered by Lockheed employees exposed to toxic substances building helicopters for the Vietnam War in the 1960’s and ‘70’s. He helped David and me prove causation when a medical device tester contracted aplastic anemia and myelodysplasia from exposure to contaminated blood products. I discussed our unconscious woman’s case with Roger during a visit to the Tiger and piqued his interest. After grilling me for more specifics, he saw something both Kate and I had missed.
It wasn’t that any one of the drugs found in the nurse’s little operating room were particularly bad, it was their combination that gave strong circumstantial evidence the nurse had a fantasy kink about performing operations on conscious but paralyzed woman. The Propofol, Versed, Ativan, and Xanax would sedate a person but not necessarily render them unconscious. The Rocuronium and Succinylcholine would paralyze them while the Phenylephrine and Ephedrine would keep them alive during any surgical procedure. According to Dr. Russell, the only purpose such a combination of drugs the nurse had would have been to perform surgical procedures on a conscious but paralyzed person. It didn’t prove the nurse had sexually assaulted our client but it was enough that a seasoned prosecutor like Kate Schmutz could reject any misdemeanor plea and force the nurse to plead to Criminal Sexual Conduct in the Third Degree for actual jail time, the loss of his nursing license, and registry as a sex offender.
My limited foray into the field of criminal prosecution proved very satisfying. My small role was to connect Dr. Russell and Kate Schmutz to help make sure a wannabe serial killer was exposed, prosecuted, and prevented from ever realizing his sick fantasies. Dr. Russell never sought to be paid and felt the nurse’s punishment was more than sufficient payment for his expertise. Kate Schmutz deserves the lion’s share of the credit, not just for the result in this case, but for dedicating her career to prosecuting serious sex offenses making us all safer in the process.
