State and defense rest their cases in Jessy Kurczewski's eye drops homicide trial

WAUKESHA - A nationally publicized eye drops homicide trial that has already spanned three weeks will move into hands of jurors Monday, following the final day of testimony Thursday.

The trial of Jessy Kurczewski, 39, of Franklin, accused of poisoning a friend with Visine drops and taking her money, continued into a third week before both sides rested their cases, with prosecutors pressing the point of how and why the Pewaukee woman died and the defense attorneys insisting that her death was not at the hands of their client.

Kurczewski is charged in the 2018 death of beautician Lynn Hernan, with authorities claiming she staged an overdose scene and stole more than $290,000 from her over time while Hernan was under her daily care.

Hernan, who was found dead in her Pewaukee condo Oct. 3, 2018, at age 62, died from a chemical found in Visine drops, tetrahydrozoline. But Kurczewski and her defense team claim Hernan was suicidal after years of poor health and financial troubles and had consumed the eye drops mixed with vodka for some time on her own. The defense has also questioned medical reports that concluded the Visine drops were a major factor in Hernan's death.

Kurczewski is facing one felony count of first-degree intentional homicide, one felony count of theft of movable property greater than $100,000, and one felony count of theft of movable property over $10,000 but less than $100,000. She previously pleaded not guilty.

Toxicologist testimony limited by court order

A Colorado case that includes a toxicology report on possible tetrahydrozoline poisoning became the focus of what testimony the defense's final witness could give Thursday.

Waukesha County Circuit Court Judge Jennifer Dorow ruled that a defense document, dealing with a pending Aurora, Colorado, case involving a suspected homicide, could be discussed generally but not in greater detail, because the document was incomplete and the case itself is still unresolved. Likewise, the witness, toxicologist Henry Spiller, could not present certain toxicology information from the Colorado case.

"We are not going to take an offer of proof and time away from this jury and bring in a topic that you have mischaracterized," Dorow told defense attorney Donna Kuchler. "I don't mind basic questions about (Spiller's) knowledge. ... Due process requires that I issue that limiting order here today."

Regardless, Kuchler did ask Spiller, a board-certified toxicologist who has run poison centers in Ohio and Kentucky and teaches toxicology to students, to discuss what he knows about tetrahydrozoline and its potential effects if consumed heavily.

Drugs other than tetrahydrozoline were a larger concern, Spiller testifies

Spiller said he reviewed all medical and toxicology reports as a paid expert for the defense in the Pewaukee case. They include coroner's reports, medical records and Hernan's autopsy. Three drugs of highest concern that found in Hernan's system were particularly noteworthy, he testified, and tetrahydrozoline wasn't one of them.

Baclofen, a skeletal muscle relaxant, "is the one that really jumped out at me," Spiller said, noting the drug's ability to shut down the brain in a course of treatment for spasms. Combined with alcohol, baclofen increases the effect of the drug, he added.

According to Spiller, Hernan should not have had any trace of baclofen in her system because it had been discontinued as a treatment some time before. Hernan had 10 times the therapeutic level of baclofen in her system, he testified.

Other drugs, including alprazolam, also present in her body at the time of her death, exacerbated Hernan's medical crisis, potentially dangerously lowering her blood pressure, he testified. Those drugs "are bad boys, that might light up your life," he said.

While tetrahydrozoline, found in other brands of eye drops aside from Visine, should not have been readily evident in Hernan's system, Spiller, who has published several papers on the drug, said he questioned a post-mortem report on the lethal effects of tetrahydrozoline.

"There's some real problems," he testified, suggesting that the results showed "statistical trickery" that wasn't reliable from a toxicologist's standpoint. "Outlier" data can skew the results, he explained. Spiller personally would have wanted the results peer-reviewed to examine the role of tetrahydrozoline in the report.

"When you actually see the results, it would not fly in peer review," Spiller testified.

Tetrahydrozoline's effects are limited, he says

Spiller co-authored a paper on tetrahydrozoline, "a widely used drug that was used in bars to gain compliance for sexual assault," he said. As a result, he pushed for testing at poison control centers for the presence of the drug in such cases, which gave him a deeper sense of tetrahydrozoline and its effects.

No medical intervention is necessary in such cases involving tetrahydrozoline, he said, adding that the effects essentially amount to drowsiness and dizziness.

Spiller's knowledge included a study that measured the concentration of eye drops in individuals using the medication as directed to illustrate the differences if it is used as a date-rape drug. "Visine was never applied as an oral medication," he noted.

The other medications found in Hernan's system represented deeper trouble, according to Spiller. He testified that Hernan would have had to take 33 to 42 tablets of her various medications within hours before she died. By contrast, the tetrahydrozoline amounted to a teaspoon, about one-third of the typical Visine bottle.

Asked by Kuchler about the seriousness of drugs present in Hernan's body in medical reports, Spiller said tetrahydrozoline ranked "at the bottom." Based on the testimony of experts earlier in the trial, Spiller said it's possible not enough weight was placed on Hernan's cardiovascular health.

Having earlier noted that his poison control centers average about 10 suicide-related incidents per day, Spiller said the age group that sees the most suicides is the 40s-to-60s range.

State casts doubts over Spiller's toxicology opinions and data

Under cross examination by Deputy District Attorney Abbey Nickolie, Spiller acknowledged that his role in poison control center toxicology doesn't involve issuing death certificates, unlike the role of a medical examiner.

Nickolie also questioned whether reserve-dosing estimates are empirical enough to offset the death-determination report of a medical examiner. Spiller said he thought such the information "was helpful."

She also asked Spiller whether toxicology tests could be affected by other factors, including the amount of time that had elapsed since her death and her health conditions. He concurred.

Nickolie suggested that Spiller's own opinions reveal that tetrahydrozoline can be used to incapacitate an individual, affecting their memory and leaving them vulnerable, among other factors.

"Yes, if you talk to the victim, they have these episodes where they wake up ... and can give you these memories. There are periods where they are alert," but it doesn't last long, Spiller acknowledged.

Thursday's proceedings wrapped up with the state calling a rebuttal witness, Dr. Sherri Kacinko, a toxicologist who on Oct. 27 testified to what tetrahydrozoline is and what it does. Nickolie said Kacinko was called to address points questioned by Spiller in his testimony.

Kacinko said Spiller's claims that guidelines for toxicologists allowed for reverse-dose calculations was not consistent with her view of best practices, reinforced by professional toxicologist associations. Using reverse-dose calculations pertains only to a clinical settings, not post-mortem settings, she testified.

"A lot of different things can happen to make a person different" than in clinical settings, she said, adding that differences become greater after a person has died and tests are conducted.

State rested case with third day of detective's testimony

Earlier in the week, on Monday, Waukesha County Sheriff's Detective Aaron Hoppe appeared for the third time, again testifying about interviews he conducted with Kurczewski after she was arrested in July 2019 after law enforcement got a warrant to search her residence. She denied killing the victim, assisting or staging her death.

But Hoppe said Kurczewski never informed detectives at the scene that Hernan had been consuming Visine drops.

Hoppe again acknowledged that Kurczewski denied staging the crime scene, but investigators found that she had deleted files on her phone dealing with cyanide, poisoning and suicide. He said she also led detectives on a wild goose chase about the location of Hernan's safety deposit box.

Prosecutors, through witnesses and records included in exhibits, also pressed the point that Kurczewski had committed fraud multiple times in the past and had a gambling problem, which could have led to her efforts to take money from her family friend.

The state rested its case on Tuesday.

Defense earlier focused on possibility of suicide

On Tuesday, after Dorow denied a motion for directed verdict to end the trial, the defense called its first witnesses, including Gary Verdin, who has known Kurczewski's mother, Jennifer Flowers, for two decades and eventually met Hernan in a Hales Corners bar.

Verdin testified that he saw multiple bottles of Visine in Hernan's Pewaukee condominium as well as a bottle of vodka. He also saw a Visine bottle in a trash can of her apartment in her Waukesha apartment.

Verdin acknowledged he avoided talking to Hernan, depicting her as someone was "angry" at the world. He said she also had at least once said she was suicidal.

But Jimmy Ray Burge, a friend of Hernan, said she never expressed suicidal thoughts, that she had complained about her health and lingering illness.

Also on Tuesday, Linda Eisenhart, an FBI lab forensic expert, testified that certain checks written to Kurczewski appeared to have been written by Hernan, though there were inconsistencies. Her testimony was tied to defense claims that Kurczewski did not try to steal any of Hernan's money.

On Wednesday, Dorow allowed the admissibility of a document and testimony from an expert discussing whether Hernan was suicidal.

Dr. Lindsey Thomas, a forensic pathologist and consultant who made the assessment on behalf of the defense, testified her review of myriad paperwork tied to the case prompted her to write an opinion concluding that Hernan's past medical history, including psychiatric disorders, were major factors in her death.

Thomas suggested suicide was at least a reasonable possibility, though health conditions could also have resulted in her death.

One of the records showed Hernan was under palliative care at one point, suggesting chronic conditions plagued her. Her death, Thomas opined, was caused by a "mixed drug toxicity" from the various prescriptions she took, perhaps to excess. A heart condition alone could have contributed, she added. Thomas would have categorized Hernan's manner of death as "undetermined."

But, in cross examination, Thomas acknowledged it was at least possible for the drugs found in Hernan's system at the time of her death could have been forcibly administered when she was heavily sedated by tetrahydrozoline. However, she disagreed with the medical examiner's report that Hernan's death was caused tetrahydrozoline poisoning.

Case continues Monday with closing statements

Kurczewski confirmed under questioning from Dorow that she would not testify on her own behalf, leaving only closing statements and jury instructions before jurors get the case to deliberate.

Rather than continuing Friday, Dorow opted to push prosecutors' and defense attorneys' closing statements until Monday, allowing jurors to begin deliberations at the beginning of the fourth week of the trial.

Contact Jim Riccioli at (262) 446-6635 or james.riccioli@jrn.com. Follow him on Twitter at @jariccioli.

This article originally appeared on Milwaukee Journal Sentinel: State and defense rest in Jessy Kurczewski's eye drops homicide trial