Bill Decker: Beyond 83.3 percent of a reasonable doubt

Last week, former Lafayette physician Richard Schmidt lost his first bid for parole from the Louisiana prison system.
It was no surprise. This was Schmidt’s first time before parole authorities after serving only 17 years of a 50-year sentence from his 1998 conviction for attempted murder in Lafayette Parish. Louisiana didn’t get to be the state that keeps a bigger percentage of its citizens behind bars than any other by turning inmates loose on the first try.

But it was odd to think that Schmidt’s case happened during a national debate about the treatment of African Americans by police and the judicial system.

Schmidt was convicted on a 10-2 jury vote. Some say Louisiana allows criminal convictions without a unanimous verdict (except in capital cases, where unanimity is required) because authorities wanted to give white jurors the power to ignore black colleagues in the deliberation room.

Really? The only other state that convicts criminal defendants on a 10-2 or 11-1 vote is Oregon, hardly a breeding ground for Jim Crow. And Schmidt is a white Protestant.

One more thing about the 10-2 votes. By definition, such a vote carries at least a touch of uncertainty. And when Richard Schmidt was under suspicion in the late 1990s in Lafayette, everybody seemed to want to know for certain what went on. It was that kind of case.

The background, according to the prosecution account:
In the 1980s, Schmidt was a married Marine veteran and gastroenterologist who was practicing at the old Hamilton Hospital. He took up with a young woman, also a Hamilton employee who would one day become a registered nurse.

They had a long affair, an affair that produced a child. But witnesses later testified that Schmidt made threats against her, including to post pornographic pictures of her at what is now the University of Louisiana at Lafayette, where she was a student. She had abortions and said it was at Schmidt’s insistence.

Even so, she pressured Schmidt to leave his wife. He did move out, finally, about summer 1994.

But the nurse learned that Schmidt moved back to his wife’s side. The nurse called off the affair.

Enraged, Schmidt threatened to make her so that no other man would want her.

Then, in January 1995, the nurse learned that she was HIV-positive and had hepatitis-C.
She was mystified. She said later that there had been no needle sticks at Lafayette General Medical Center, where she was then working. She’d been exposed to material containing HIV long before, but she had consistently tested HIV-negative since then.

But she remembered a night in summer 1994 when Schmidt had dashed into her Duson home, jabbed her with what was supposed to be one of a series of B12 injections, and dashed out again. The nurse became convinced that he had infected her with that shot. She went to the police.

Investigators used memory techniques to pinpoint the date. They got the nurse to remember that on the day after the “shot in the dark,” she and a friend had prepared a hospital room for a patient who became a favorite. That memory fixed the date of the shot as Aug. 4, 1994.

I began to cover the prosecution two years later, when Schmidt was indicted for attempted murder. The case drew international attention even before the trial. A German reporter called one day to ask if the “d” in Schmidt’s name indicated he was from Germany. One British reporter told me that people in the UK “like to read about the strange goings-on you Yanks get up to.”

Once the trial started, so did the drama. Here are a couple of key points to let you see how much certainty there was in the verdict.

There was a lot of kerfuffle in the beginning about a new DNA technique. It was new because the DNA in the HIV virus doesn’t have an editing function. Your DNA and mine stays pretty much the same as long as we live, but viral DNA evolves much more quickly, maybe 1 percent a year.

The Baylor School of Medicine used a statistical analysis to compare the virus infecting the nurse with that of an AIDS patient being treated by Schmidt, presumably the source of the virus he injected her with. Judge Durwood Conque ruled that the prosecution could only say the two samples were “closely related,” so it wasn’t really conclusive evidence.

Police did better with a search of Schmidt’s South College Road office.

Schmidt used an outside lab to perform blood analysis. The samples were numbered. One numbered sticker went on the sample and on to the lab, and another went into a notebook that stayed at Schmidt’s office.

When police arrived, the notebook containing stickers from the Aug. 4 period was missing. They found it later in a closet. Between that notebook and the testimony of the AIDS patient, the police believed that a sample had been drawn but never sent to the lab. Investigators believed they had identified the source of the HIV injected into the nurse.

That bit of knowledge wouldn’t do much good if investigators couldn’t explain the hepatitis-C, too. Finally, then-Capt. James Craft, now Lafayette’s police chief, found a notebook entry indicating that a hepatitis patient of Schmidt’s had had blood drawn with no corresponding entry that a sample had been sent to the lab. The patient later told police that Schmidt had told her he needed a sample for his own research.

Lead prosecutor Keith Stutes, now the 15th Judicial District attorney, had the only sensible explanation for the record-keeping sleight-of-hand: Schmidt used the infected blood samples as his poison and hid the records to cover it up.

Schmidt also tripped himself up. Even though he was a doctor who learned the woman he’d been intimate with for a decade was HIV-positive, he said he never got tested for HIV himself. His lawyer, Michael Fawer of New Orleans, said Schmidt was “in denial.” It seems more likely Schmidt knew he wasn’t infected because he knew how and when she became HIV-positive.
But convictions are supposed to happen only when guilt is beyond a reasonable doubt. Fawer had lined up reasonable doubt on two legs.

He was Dr. Michael Hagensee, who was in charge of treating AIDS patients at Big Charity hospital in New Orleans.

Hagensee testified that the body’s reaction to HIV infection tends to follow a predictable pattern. And, Hagensee said the timing was wrong in the nurse’s case.

The Aug. 4 date didn’t line up with the development of her HIV-infection symptoms. That and other factors led him to say that the odds against the prosecution version being true were 10,000 to 1.

Almost as bad as Hagensee’s testimony itself was the fact that prosecutor Stutes, who was meticulous in assembling his own evidence and in attacking the defense, barely challenged Hagensee.

In any case, the jury voted 10-2 to convict Schmidt. In Arkansas, Texas, Mississippi or Alabama, Schmidt would have walked out of the courtroom a free man. But in Louisiana, he was headed to prison for 50 years.
It may not have been beyond a reasonable doubt. Maybe it was beyond 83.3 percent of reasonable doubt, and in Louisiana, that’s all you need.

This column was written by Bill Decker of The Daily Review staff. Reach him at bdecker@daily-review.com.