Death Penalty Case: Will of Which People?

In a state with no death penalty, Kristen Gilbert is on trial for her life.

Four patients at the Veterans Affairs Medical Center in nearby Northampton died at Gilbert’s hand in 1995 and 1996, the federal government contends. The 33-year-old former nurse and mother of two also is charged with attempting to murder three additional veterans.

Because the deaths occurred on federal property, Gilbert could face the federal death penalty--the first capital case in Massachusetts since 1984. That year, the Massachusetts courts abolished capital punishment, and it is one of 12 states that does not allow executions. State legislators here repeatedly have rebuffed attempts to reinstitute the death penalty.

The subject is so sensitive here that during nearly three weeks of jury selection, scores of potential jurors were dismissed when they said they could not recommend sending someone to death.

In a trial expected to last until February, Gilbert’s lawyers say federal jurisdiction in the case is “a direct insult” to the people of Massachusetts. They contend that the death penalty constitutes cruel and unusual punishment because state law does not specify how or where a defendant would die and that the federal death penalty statute is unconstitutional because it does not specify a method of execution.

The case is being closely watched nationwide by death penalty opponents. They note that since the federal government began applying its expanded death penalty statute in 1994, no jury has returned a federal death sentence in a state without capital punishment.

Along with its importance as a capital case, the apparent conflict between state and federal interests makes the Gilbert case “a curiosity,” said law professor James Acker of the State University of New York at Albany.

“You have the state Legislature declining to adopt a death penalty statute, and that presumably expresses the will of the people,” said Acker, a death penalty expert. “Then all of a sudden it comes to their attention that there’s another sovereign out there, the federal government. So you have citizens believing in their daily lives that there is no death penalty, and now they’re sitting on a jury that involves the death penalty.”

Gilbert has pleaded not guilty on all counts. The men who died were either old, sick or both, and their deaths were natural, she and her lawyers say. Because she was working in a critical care unit, they observe, death is hardly an unfamiliar occurrence.

The defense also points out that there are no witnesses. “No crimes were committed as far as we know by anyone at the VA Medical Center,” defense attorney David Hoose told the jury.

Prosecutors allege that Gilbert took vials of epinephrine from a locked cabinet on her unit and used the drug to kill her victims. In opening statements, they told jurors that Gilbert’s colleagues reported their suspicions about her, triggering an investigation.

Vials of epinephrine--a drug that can send a healthy heart into cardiac arrest--disappeared while she was on duty, other nurses reported. The nurses said no one could find a physician’s order for the drug when it vanished, again and again, from a locked cabinet on her unit.

Prosecutors allege that Gilbert’s actions were linked to trouble in her personal life. Her marriage was falling apart, they say, and her relationship with a hospital guard was tumultuous.

Because an unusual number of deaths took place on her watch, doctors and nurses at the hospital began referring to Gilbert behind her back as “the Angel of Death,” the prosecution said.

She is accused of killing the four men--and attempting to kill at least three others--by flushing their IV lines with epinephrine, which is difficult to detect in an autopsy.

When the patients went into “code”--the hospital term for imminent death--Gilbert and the guard were brought into contact, the prosecution alleges. Government lawyers say Gilbert staged three of the deaths to look heroic in the guard’s eyes as he rushed to attend the code situation and found Gilbert working to revive the patients.

According to the prosecution, a fourth death occurred after Gilbert asked a supervisor whether she could leave early if her patient died. He did, and Gilbert kept her date with the guard.

U.S. District Judge Michael A. Ponsor declined to let prosecutors admit data showing that Gilbert was on duty for half of the 350 deaths that occurred on her ward for the seven years she worked at the hospital. The prosecution contends the chance of that being a coincidence is 1 in 100 million. Ponsor said he felt the statistics were prejudicial.

When suspicions about the cluster of deaths at the VA pointed in her direction, Gilbert took a medical leave from her job and never went back. She and her husband divorced, and her husband was granted custody of their two sons.

In 1998, she was convicted of making phony bomb threats to the VA hospital while a grand jury was investigating the deaths. She was sentenced to 15 months in a federal prison.

If Gilbert is found guilty of murder, the jury will consider evidence in a second phase of the trial to determine whether she should be put to death.

Even if jurors find Gilbert guilty, the circumstantial nature of the evidence makes a death sentence less likely, said Paul Cassell, a law professor at the University of Utah.

“Juries want proof, not merely beyond a reasonable doubt but beyond all doubt, at least in their minds,” said Cassell, who has testified before Congress about the death penalty. “So they may convict but not impose the death penalty.”

A year ago, Atty. Gen. Janet Reno authorized U.S. Atty. Donald Stern’s decision to seek the death penalty for Gilbert.

No women are on federal death row, and the last woman executed by the federal government was Bonnie Brown Heady in December 1953. Heady kidnapped and murdered a 6-year-old boy; she died in the Missouri gas chamber.

No federal prisoner has been executed in 37 years. Currently, 20 inmates are on federal death row.

On Dec. 7, President Clinton granted a six-month reprieve five days before federal death row inmate Juan Raul Garza was scheduled to die. The president said he wanted the U.S. Justice Department to have more time to gather and assess information about racial and geographic disparities in the federal death penalty system. “In this area,” Clinton said, “there can be no room for error.”