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Burden of Proof

Investigators Charge Former California Hospital Worker With Six Counts of Murder

Aired January 11, 2001 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, investigators call him the "Angel of Death," and now they've charged a former hospital worker in California with six counts of murder.

(BEGIN VIDEO CLIP)

CHIEF RUSSELL SILVERLING, GLENDALE, CALIFORNIA, POLICE: We have found evidence to conclude that six of these patients were, in fact, murdered. We filed six counts of murder, murder by poisoning, using a substance called Pavulon.

AL MCKENZIE, DEPUTY DISTRICT ATTORNEY, LOS ANGELES COUNTY: Bottom line is, if you give the person the drug and you don't create an artificial means for them to breathe, they're not going to breathe, and they're going to die.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

This week in Glendale, California, police arrested a former respiratory therapist and charged him with murdering six patients. Efren Saldivar was formally charged yesterday with his crimes that occurred in 1998. The suspect admitted to killing up to 50 people under his care but later recanted that confession. So investigators launched a 34-month probe to build a case against the suspect referred to as the "angel of death." And in the end, 20 bodies of former patients from Glendale Adventist Medical Center were exhumed, and traces of the drug Pavulon were found in the remains of six patients. If convicted, Saldivar could be facing the death penalty.

Joining us today from Los Angeles is Chris Nicoll, plaintiff's attorney in a civil suit in this case. And also in Los Angeles, Chris's wife, Mary Nicoll. Now, she is the granddaughter of a suspected victim of the "angel of death." Here in Washington, Page Haller (ph), pulmonologist Byron Cooper and Emily Leonard (ph). In the back, Hadizah Bushay (ph) and Woody Fitzhugh.

I want to go right to you first, Mary. It was your grandfather that was a suspected victim of this man. Tell us, what was your grandfather in the hospital for, and what happened?

MARY NICOLL, VICTIM'S GRANDDAUGHTER: He went in for a hip surgery, and successfully went through the surgery, expected he was ready to go home. And my grandmother and uncle walked into the room to find him deceased.

COSSACK: How -- how was he? I mean, was he -- was there any complications that anybody had been told about? I mean, was there a -- was he in life -- life-threatening situation?

MARY NICOLL: You know, I'm not really -- that's more of a legal question that my husband can probably answer. When it concerns "life- threatening"...

COSSACK: Well...

MARY NICOLL: ... to my knowledge, no.

COSSACK: Well, this isn't too much of a legal question. I mean, your grandfather had surgery. How was he after he came out of the surgery?

MARY NICOLL: Perfect.

COSSACK: And how long had he been in the hospital?

MARY NICOLL: Ten days.

COSSACK: And when...

MARY NICOLL: He went in on...

COSSACK: And when was he expected to be released?

MARY NICOLL: The day after Memorial Day. He was -- it was discussed with the social workers and everybody on the Saturday before his death, and he passed away on the 31st...

COSSACK: Was he...

MARY NICOLL: ... which was a holiday.

COSSACK: Was he in great pain?

MARY NICOLL: Not to my knowledge. He was -- the last visit that my aunt and uncle had -- my aunt and grandmother had with him, he was praying and he was responsive and everything was going wonderful.

COSSACK: Did you -- after your grandfather died, did you or your family suspect that something was wrong, or did you think that this was just a natural occurrence?

MARY NICOLL: We didn't suspect anything was wrong until Efren Saldivar's confession. I mean, he was 91 years old.

COSSACK: All right. MARY NICOLL: So...

COSSACK: So the fact that he passed away perhaps was not a shock to you or to your family.

MARY NICOLL: Not at the time, I don't think so. We were shocked because he was doing so well, but again, he was 91 years old.

COSSACK: OK. Let's go to your husband now. Chris, you are bringing a civil suit against Efren Saldivar, as well as the hospital. Pretty clear why you're bringing it against Efren Saldivar, but why the hospital?

CHRIS NICOLL, PLAINTIFF'S ATTORNEY: The hospital, as you may know, had been -- there were rumors floating around the hospital for years prior to this. They had actually received a complaint, an anonymous complaint, that Efren Saldivar had a magic syringe, and that he was helping people die early. This was in '97, a year before his confession.

The hospital understood their own internal investigation, a statistical investigation to see if more people died on his shift than not. These were elderly patients, so the survey didn't show anything.

In my opinion, if someone accuses your employee of murder, you don't call a statistician, you call the police. And they didn't call the police. A year later, someone gave an anonymous tip to the police, and that's when they called Saldivar in, and he gave his confession. They gave him his Miranda warning. He was hooked up to a lie-detector machine, confessed to killing 40 to 50 patients, and he passed the lie-detector test.

COSSACK: Is it -- is it your belief that the hospital was negligent in the way they investigated Saldivar?

CHRIS NICOLL: We -- it's our contention that they were negligent in having this man roam the halls of their hospital for so long when so many people were aware of the fact that he was committing these kinds of acts, yes.

COSSACK: Chris, how -- Chris, how many people were aware that he was committing murder?

CHRIS NICOLL: There were three other respiratory therapists that were fired, along with Efren Saldivar, because they had admitted they had this knowledge. One respiratory therapist had saw these illegal drugs in Efren Saldivar's locker.

In our case, another reason we believe the hospital is liable is once Saldivar confessed, we went back and we got the medical records, and we found something that hadn't been disclosed before. Mr. Schwartz (ph) was a fall risk, and he was supposed to be tied into his bed and securely restrained. The records show that he had fallen out of bed, and they found him on the floor gasping for breath, and he died within 25 minutes. This was never disclosed to the family. They picked him up. They put him back in bed. He died, and they just left him there for the family to find. And they never disclosed this.

COSSACK: Chris...

CHRIS NICOLL: We think this was...

COSSACK: Chris, did a pathologist examine any of the tissue from -- from your wife's grandfather to decide what it was that killed him?

CHRIS NICOLL: Yes. In 1998, there was an autopsy done, but ever since, those records have been under seal as part of the ongoing criminal investigation. In fact, in the civil lawsuit, we have been trying to get the autopsy and the toxicology reports for quite some time. We had a motion -- we have a trial coming up in February. We had...

COSSACK: Let me just interrupt one second.

CHRIS NICOLL: Sure.

COSSACK: Did you ever -- did the hospital know that there was Pavulon found in the tissue of -- of Mary's grandfather after the autopsy was done?

CHRIS NICOLL: No -- no one knew anything about any Pavulon in any of the persons until yesterday, when the criminal complaint was filed and the names of the suspected victims were in the criminal complaint. No toxicology reports were ever released before that.

COSSACK: Do you think that the hospital -- the hospital has been sitting on these toxicology reports that would show that there was this foreign substance?

CHRIS NICOLL: The hospital didn't have them, they've been in policy custody. And the police have held onto them for all these years.

COSSACK: All right, let's take a break. The man called the "angel of death" allegedly used a drug called Pavulon on his victims. When we come back, we'll find out more about this drug and who has access to it.

Don't go away.

(BEGIN LEGAL BRIEF)

Today is the deadline for convicted Oklahoma City bomber Timothy McVeigh to request an appeal on his death sentence. According to his lawyer, McVeigh wants to forgo any additional appeals. The U.S. Bureau of Prisons will set a date for McVeigh's execution as early as May. He is scheduled to die by lethal injection.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: On Tuesday, police in Glendale, California, arrested a former hospital worker and charged him with the deaths of six patients. Efren Saldivar allegedly used a drug called Pavulon on the victims. Pavulon will stop normal breathing and is commonly used by anesthesiologists when putting someone on an artificial respirator.

Joining us now from Los Angeles is criminal defense attorney James Bianco, and also in Los Angeles, former state prosecutor Ken Wullschleger.

But first I want to go to Dr. Cooper. Dr. Cooper, tell us a little bit about this Pavulon. What is its use? How is it administered? And who should have it?

DR. BYRON COOPER, PULMONOLOGIST: Pavulon is a neuromuscular blocking agent, and in short, it paralyzes the muscles. The legitimate uses are, one, if you're operating on someone. In addition to sedating them, putting them to sleep for the surgery, in some situations, you want to relax their muscles. If you're operating on the abdomen, you want to reduce the pressure to make it easier for the surgeon to work. But in that instance, none of the muscles will work. The patient will be able to breathe because they're using a machine.

In my field, pulmonary medicine, we use it on occasion when somebody can't breathe because of a pneumonia or shock or some other medical situation where they're put on a ventilator. And if they're fighting the ventilator, sometimes you can ventilate them better if you paralyze them. In that situation, you also have to sedate them because this does not make them calm or, you know, relaxed or anything. It just paralyzes the muscles.

COSSACK: Let me -- let me see if I understand what you're saying. What you're saying is that this -- what this drug does is it inhibits the normal ability to breathe. You can't breathe, but you know you can't breathe.

COOPER: That's correct.

COSSACK: So that you -- you better be hooked up to a respirator or be in an unconscious state or otherwise this is a nightmare coming to life.

COOPER: That's true. It paralyzes all the muscles, so you look like you're peaceful, but you're wide awake unless you're asleep for some other reason, such as being sedated or because you're in a coma. There's no reason to paralyze somebody who's in a coma. But if they're fighting the ventilator, it -- that's a legitimate reason to use it.

COSSACK: All right, now, who -- who would be the one that administers Pavulon? Who should do this? Who makes the decisions?

COOPER: Generally, the intensivist in the ICU would order Pavulon in those instances where it's appropriate. It could be administered -- it's an IV medication. Could be administered either by an ICU critical care nurse, by the physician. It's not done by respiratory therapists. COSSACK: OK, so in this case a respiratory therapist is alleged to have done the injection. And how -- how actually would it be put into the person's body?

COOPER: It'd be drawn up in a syringe. The dose...

COSSACK: Yeah, I know you brought a syringe with you. Do you have it with you?

COOPER: Yeah.

COSSACK: Can you just show us? Now, you indicated to me earlier that this syringe would be too small.

COOPER: Actually, it's -- it -- just barely. It's about -- you use about .04 to .1 milligrams per kilogram, so anywhere from...

COSSACK: Say 150-pound man. How much would that -- how much...

COOPER: This might do it...

COSSACK: ... calculate or...

COOPER: ... or slightly -- slightly more than this.

COSSACK: So the full -- that full syringe would be necessary.

COOPER: Probably.

COSSACK: And how quickly-acting is it?

COOPER: It lasts for a couple of hours, and it acts fairly quickly, within minutes.

COSSACK: So it disables...

COOPER: Within about two minutes.

COSSACK: ... the individual immediately.

COOPER: Correct.

COSSACK: All right. And the only -- and a -- and how do you get this from the hospital? Is it readily available?

COOPER: Generally, it would have to come -- I don't know what their pharmacy situation is in this hospital where it's done, but generally it has to be ordered up from the pharmacy or it's in a crash cart. I've never seen it on shelves. There are security systems that are generally in place...

COSSACK: So this would be...

COOPER: ... to monitor...

COSSACK: This would be a drug that would be under lock and key. I mean, this is a secure lock -- a secured drug.

COOPER: Nowadays, in the hospitals that I'm familiar with, all drugs are monitored and...

COSSACK: But it's not a narcotic.

COOPER: It's not a narcotic.

COSSACK: Right. But this is a drug that obviously, for what it can do, you want to make sure that it's kept very careful, right?

COOPER: That -- it should be, and virtually all the drugs are monitored now, even penicillin or an aspirin or -- or drugs that most people think...

COSSACK: So one of the...

COOPER: ... are pretty benign.

COSSACK: ... questions that we're going to want to know eventually in this case is where this man allegedly got this Pavulon. It's clearly not something I can go buy in the drug store.

COOPER: Correct.

COSSACK: All right. Let's talk a little bit about -- to Ken -- now, Ken, you're a prosecutor. There are some problems in this case, I would suspect, one of which is, is that this man's confession. Will it be able to be used now, in light of the fact that there are some -- there is at least an allegation of independent evidence?

KEN WULLSCHLEGER, FORMER DEPUTY DISTRICT ATTORNEY, LOS ANGELES COUNTY: Well, I think that makes it possible now, and that's probably why the filing just occurred now, the new evidence.

COSSACK: All right, let's talk a little bit about what happened. His confession was that he did these things, and then he recanted his confession. And then the police investigated for a couple years and came up with independent evidence. Now, at the trial, will that confession be put into evidence?

WULLSCHLEGER: I'm sure they'll try to put it in. It will be needed to be successful.

COSSACK: And why will the -- won't the defense object that there's really no other way to hook to this man to it? I mean, if you take away his confession, there really is no other evidence to say that this is the man that did it.

WULLSCHLEGER: That's correct. Without the confession, I don't believe the people will have a case.

COSSACK: All right. Let's take a break. According to police, the suspect they arrested this week confessed to hospital killings in 1998. But why wasn't he arrested then?

Don't go away.

(BEGIN Q&A)

Q: Two South Carolina prison guards were charged with letting minimum-security inmates have sex at the governor's mansion. The South Carolina Corrections Department has been under investigation since August, when a guard was caught having sex with what high- profile convict?

A: Susan Smith.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: The bodies of 20 former patients were exhumed in the investigation of former hospital worker Efren Saldivar. Now, that probe took place after a reported confession from the suspect in 1998. But Saldivar wasn't arrested until Tuesday.

Jim Bianco, the problem, as a defense lawyer in this case -- the evidence that we have right now is that there are six exhumed bodies. They find traces of this Pavulon. And there's a confession from Mr. Saldivar that was made a couple years earlier that he then recanted. The people now feel that they have enough independent evidence, with the finding of this Pavulon, that they have enough to have a case. As a defense lawyer, what would you do in this situation?

JAMES BIANCO, CRIMINAL DEFENSE ATTORNEY: Well, if they have independent evidence that the six people were actually murdered, then the confession's coming in. The issue at that point is, what were the surrounding circumstances under which this supposed confession was given? First of all, was it recorded? I don't -- I haven't heard anything about an audiotape or a videotape of the confession, which, given the nature of the investigation, would be somewhat questionable.

Putting that aside, the circumstances under which the interview was conducted -- was there some coercion? A little coercion is OK, a lot of coercion is not OK. And then there's the issue as to what his psychological state was at the time of the interview. I've heard reports that he was suffering from depression. He basically did this because he wanted to be put to death himself -- you know, made the statements, even though he hadn't actually done it.

About two weeks after he supposedly made these statements, he recanted the confession. So that also raises some questions.

COSSACK: Ken, Jim brings up interesting points. The question now is, OK, even assuming that it meets the admissibility test -- the judge doesn't keep the jury from hearing it -- what about the questions regarding this -- this confession?

WULLSCHLEGER: Well, the fact that he was not arrested before this, he was being interviewed, he volunteered the information -- it appears that there's no coercion that can be shown here. The fact that he recanted it later is not unusual in crimes, that defendants have a second thought on the situation. But in this case, I think the evidence is quite clear that the confession was given voluntarily and freely.

COSSACK: But you know, it would seem that there may be a problem for the people if all the evidence is -- consists of is his statement and then the bodies, finding this -- this amount of Pavulon. First of all, isn't the -- aren't the people going to have to prove that this man had access to that drug?

WULLSCHLEGER: Yes, that was a concern I have, how the -- we can prove additional evidence to connect him. Juries like to have more than just a confession.

COSSACK: What would you be looking for, Ken, if you were handling this case? What other evidence would you be looking for?

WULLSCHLEGER: Well, first I'd want to go back to the families of all the victims to make sure that this person wasn't wanting to die immediately, so that you go into the issue of sympathy towards the fact that the person now is dead. Then I would like to be able to show that the defendant had access and was in the rooms with these individual patients. If we could have witnesses that saw him in their rooms at some time, that would be very helpful -- things of that nature.

COSSACK: And Jim, from your side, what would you be trying to do? Would you be trying to get him, like, a -- some kind of a psychiatric examination or what?

BIANCO: Well, I would be doing that, although that's somewhat secondary. You know, the first-line defense would be looking at what the test -- what the tests were that were conducted that supposedly came up with these results. I have questions as to whether or not bodies that were exhumed would still show traces of this drug. I understand that the tests that they used were brand-new tests. They developed them just for this case. So I'd be looking at whether those results themselves are valid.

And I would also, you know, be interested as to whether there's any other evidence to connect him. My understanding is that there are no other witnesses...

COSSACK: OK, Jim...

BIANCO: ... and there really is no...

COSSACK: I'm afraid that's all the time we have for today.

Thanks to our guests, thank you for watching.

Join us again tomorrow for another edition of BURDEN OF PROOF, and we'll see you then.

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