Friday, September 24, 2010
Court Revives Former Toxicologist’s Appeal of Poisoning Conviction
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday revived former San Diego County toxicologist Kristin Rossum’s appeal of her murder conviction for poisoning her husband with the powerful drug fentanyl in 2000.
A three-judge panel said that Rossum’s trial counsel rendered ineffective assistance by not conducting a test that would have shown whether samples from Greg de Villers’ autopsy showing fentanyl levels in his system were contaminated by the county’s medical examiner’s office.
The panel stopped short of reversing Rossum’s conviction, however, and remanded the case to the district court, directing it to allow Rossum to test the specimens and to conduct a hearing to determine whether she was prejudiced by her attorneys’ error.
Rossum is currently serving a life sentence for first degree murder. Prosecutors say she stole fentanyl, a powerful synthetic opiate, from her job at the medical examiner’s office and used it to silence de Villers, who had threatened to tell authorities about her affair with then-chief toxicologist Michael Robertson and her methamphetamine habit if she did not resign.
Defense attorneys conceded at trial that de Villers died from an overdose of fentanyl and that he committed suicide. But Rossum contended that they first should have tested autopsy samples for fentanyl metabolites produced by the liver, which would have shown whether the drug was present before de Villers’ death or resulted from laboratory contamination.
On review of Rossum’s request for habeas corpus relief, U.S. District Judge Nancy Gertner of the District of Massachusetts, sitting by designation, agreed with Rossum, writing:
“If no metabolites were found, it would have proven that fentanyl had not been in de Villers’ body prior to his autopsy and thus could not have caused his death.”
Gertner noted that the prosecution’s case was circumstantial and hinged on toxicological and medical evidence that could have supported the suicide theory. Although fentanyl levels in de Villers’ autopsy samples were extremely high, suggesting an immediate death, they were at odds with medical evidence indicating that he lingered unconscious for several hours before dying.
Toxicology tests also indicated the presence of a smaller amount of the drugs clonazepam and a trace level of oxycodone in de Villers’ system, and experts testified at trial that the two drugs multiply one another’s effects when taken together.
Gertner commented that the potential for contamination was “not remote,” and pointed out that the medical examiner’s office, which normally would have performed the toxicological analysis of de Villers’ samples, was concerned enough about the possibility of a conflict of interest that it sent the samples to another lab for testing. However, the samples were stored in an unsecured refrigerator for 36 hours before being sent.
The samples were eventually sent to two other laboratories for testing, which measured concentration levels of fentanyl which varied considerably from one another and from the initial test results.
Gertner also said that “the swirl of personal relationships” among employees at the medical examiner’s office provided motives for contamination, even if those motives were speculative, as the district court concluded.
“In light of the anomalous medical and toxicological evidence, the ready availability of an alternative cause of death, the lapse in the chain of custody of de Villers’ autopsy specimens, and the failure of Rossum’s attorneys to have a test conducted that could have conclusively contradicted the prosecution’s theory of the case, she has made a strong showing that her lawyers’ performance was deficient,” the judge wrote.
Senior Judge Dorothy W. Nelson and Judge Stephen Reinhardt joined Gertner in her opinion.
The case is Rossum v. Patrick, 09-55666.
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