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Kristin ROSSUM

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide - Poisoner
Number of victims: 1
Date of murder: November 6, 2000
Date of arrest: June 25, 2001
Date of birth: October 25, 1976
Victim profile: Greg de Villers, 26 (her husband)
Method of murder: Poisoning (lethal dose of fentanyl)
Location: San Diego, San Diego County, California, USA
Status: Sentenced to life in prison without parole on December 12, 2002
 
 
 
 
 
 

photo gallery

 
 
 
 
 

United States Court of Appeals
For the Ninth Circuit

 

Kristin Rossum v. Deborah L. Patrick, Warden

 
 
 
 
 

Supreme Court of the United States

 

Petition for a Writ of Certiorari

 
 
 
 
 
 

Kristin Margrethe Rossum (born October 25, 1976) is a former toxicologist convicted of the November 6, 2000 murder of her husband Greg deVillers, who died from a lethal dose of fentanyl his wife stole from the medical examiner's office where she worked. She is serving a life sentence in a California prison.

Biography

Rossum grew up in Claremont, California the oldest child of Ralph and Constance Rossum, who were professors at Claremont McKenna College. She has two younger brothers, Brent and Pierce. In the 1990s, during high school, she used illegal drugs, including methamphetamine.

In 1994, Rossum enrolled part time at the University of Redlands and moved into a dorm on campus. But she relapsed and left campus, eventually relocating to Chula Vista, a suburb of San Diego. She met Greg deVillers, and, within a year, Rossum appeared to be over her methamphetamine addiction.

She enrolled at San Diego State University and graduated with honors in 1998. After graduating, she worked as a toxicologist at the San Diego County medical examiner's office. She and deVillers married in 1999. While married, she had an affair with her Australian boss, Michael Robertson, beginning in mid 2000.

Murder

On November 6, 2000, just after 9:15 P.M., Rossum called 911. Paramedics arrived and found Rossum on the phone in the living room. Her husband, who was found unresponsive on the couple's bed that was sprinkled with red rose petals, was pronounced dead on arrival at the hospital. His wife told authorities he committed suicide.

The bedroom scene was similar to one in the movie American Beauty. deVillers had not only learned about her affair with Robertson, but had also discovered she'd relapsed into using meth again. He had threatened Rossum that he would expose her affair and her drug use to the Medical Examiner's Office if she did not quit her job. Robertson, who knew Rossum had relapsed as well, learned of this threat before deVillers was killed.

Although it appeared Rossum's ruse had worked well, deVillers's family was suspicious. His brother Jerome was particularly adamant that deVillers was not suicidal. Despite this, San Diego police were reluctant to open an investigation at first. A month after deVillers's death, Rossum and Robertson were both fired – Rossum for hiding her meth habit, and Robertson for hiding both the habit and their affair.

The case took a new turn when the San Diego medical examiner outsourced the autopsy on deVillers to an outside lab in Los Angeles; authorities were concerned about a possible conflict of interest from performing an autopsy on an employee's husband. The tests showed deVillers had seven times the lethal dose of fentanyl in his system. Fentanyl is so rarely prescribed that the Los Angeles lab is one of the few that test for it.

Two weeks after her husband's death, Rossum was interrogated by the police. She told the detectives that her husband had been depressed before he died. Rossum's father stated that he seemed to be deeply distressed and that he drank wine and gin heavily that night. In a television interview months after deVillers's death, Rossum stated, "he was making a big deal of the last rose standing. I think he was just making a statement that he knew our relationship was over." She telephoned his office and told his employers that he would not be coming in to work the day of his murder. While the investigation continued police learned that Rossum had relapsed and was using meth again.

On June 25, 2001, seven months after deVillers's death, Rossum was arrested and charged with murder. Her parents paid for her $1.25 million bail and picked her up from the San Diego jail.

Trial and conviction

The prosecution contended that Kristin Rossum killed her husband to keep him from telling her bosses that she was having an affair with the chief toxicologist, Robertson, and that she was using methamphetamine that she stole from the coroner's lab. Defense attorneys argued that Greg deVillers was suicidal and poisoned himself. Kristin Rossum’s brother-in-law, Jerome de Villers, testified that it was difficult to believe his brother had committed suicide because he hated drugs. The emergency 911 tape played in court appeared to indicate Rossum was administering CPR to her husband. According to Rossum's VONS card history, she had purchased a single rose herself.

In November 2002, Rossum was found guilty of murder. On December 12, 2002, Rossum was sentenced to life in prison without the possibility for parole and was taken back to the San Diego jail before she could be transferred to the Central California Women's Facility in Chowchilla, the largest women's correctional facility in the United States. At her sentencing, the judge ordered Rossum to pay a $10,000 fine.

Recent events

In 2006, Greg de Villers' family sued Rossum and San Diego County in a wrongful-death suit. On March 25, 2006; a San Diego jury ordered Rossum to pay more than $100 million in punitive damages. San Diego County was ordered to pay $1.5 million. John Gomez, the lawyer for the de Villers family, said that the punitive damages may have been the most ever assessed against an individual defendant in California history. He also acknowledged that the family may never see the money, but wanted to make sure Rossum does not profit from her crime. The family had originally asked for $50 million in punitive damages, but jurors awarded double that amount after estimating Rossum could have made $60 million from selling the rights to her story. A judge later reduced the punitive damages award to $10 million, but allowed the $4.5 million compensatory award to stand.

In September 2010, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Rossum's lawyers should have challenged the prosecution's assertion, by doing its own tests, that Rossum poisoned her husband with fentanyl. The panel ordered a San Diego federal court to hold a hearing into whether the defense's error could have affected the trial's outcome. Rossum had exhausted her state appeals and turn to federal court.

On September 13, 2011, the U.S. Court of Appeals withdrew its opinion and replaced it with a one-paragraph statement that under a new U.S. Supreme Court precedent Rossum's petition was denied.

Robertson returned to Australia after being terminated by the medical examiner's office. He was named as an unindicted co-conspirator in Rossum's 2001 trial, but as of 2012 has yet to be extradited to the United States to face charges for deVillers's murder.

Wikipedia.org

 
 

American Beauty

By David Kohn - CBSNews.com

May 7, 2009

Kristin Rossum and Greg de Villers were newlyweds who seemed to have a wonderful future in front of them.

But beneath the surface, there were secret obsessions: addiction and betrayal.

Their marriage would end in a way no one could have ever imagined - one partner dead, the other accused - in a scene that seems stolen from the popular movie "American Beauty."

*****

On June 5, 1999, Kristin, 22, and Greg, 25, were married after a five-year courtship.

But before the couple could celebrate their second wedding anniversary, Greg was dead, and Kristin was behind bars.

Prosecutors say Kristin staged a suicide scene with rose petals, reminiscent of one of her favorite movies, "American Beauty."

But was it suicide - or was Greg murdered by his wife?

A former child model, Kristin was hardly the typical inmate at the Las Calinas Detention Center. She graduated summa cum laude with a degree in chemistry from San Diego State University.

Now, she is facing capital murder charges in the poisoning death of her husband. Kristin says she is innocent, and insists Greg's death was a suicide.

There are many questions, but one certainty: Kristin and Greg didn't have a fairy-tale marriage.

"About a year into our marriage, Greg became very, very clingy to me. I was trying to pull myself away and have some sort of independence," says Kristin, who decided to leave Greg and broke the news to him over the weekend of Nov. 5, 2000.

That Monday morning, while Kristin was getting ready for work, Greg stayed in bed. "He wasn't getting up like normal. He was really sluggish, and his voice was slurred. It sounded like he had taken too much of something the night before," she says.

Kristin, a toxicologist with the San Diego County medical examiner's office, left for her job at the coroner's office and called the biotech company where Greg worked to tell them he would not be in that day.

When she went home for lunch, Greg told her that he had taken Oxycontin and Clonazepam, a pain killer and a muscle relaxant.

After work, she found him in bed, asleep and snoring. Later that night, she says she noticed he wasn't breathing, called 911 and tried to give him CPR.

It was at this moment when she says she made a very chilling discovery as she tried to move Greg to the floor: "I pulled the bedspread back, and his chest was covered in rose petals. Red rose petals. And he had a picture of our weddings photos in bed with him."

"He had given me a dozen beautiful long-stem roses for my birthday. I think he was just making a statement that he knew our relationship was over."

When the paramedics arrived, they tried to revive him, but Greg, 26, was dead. Kristin says she doesn't know if it was an intended suicide or a cry for help.

*****

Greg's family and friends, however, were suspicious and pressured the police to investigate the death as a possible homicide.

Police quickly discovered that Kristin was a former drug addict who was taking methamphetamine again. Kristin says she first tried crystal meth in high school, and met Greg a few years after in Tijuana, Mexico. With Greg's help, Kristin beat her addiction, finished college, and got a job with the coroner's office.

"He was my angel because he saved me," says Kristin.

After they were married, however, the dynamics of the relationship had changed, and Kristin finally told Greg she wanted a trial separation.

One of the reasons she wanted to leave was because, within the first year of marriage, she had started an affair with her married boss, Michael Robertson.

"We had a lot in common, we were both in relationships we weren't happy with, and we gravitated towards each other," she says. "And we loved each other."

Kristin says she told Greg about her affair, and he became very obsessive. With the stress of her troubled marriage, she says, she went back to smoking crystal meth.

According to Kristin, Greg threatened to report her drug use and her affair to her supervisors, including Michael Robertson's boss. Prosecutors say that she killed Greg because she was afraid he was going to expose her affair with Robertson and her drug use.

During the investigation, police discovered that Greg had a lot of fentanyl, a powerful pain killer, in his body. It can be administered by injection, or swallowed, or it comes in timed-release patches applied to the skin.

Fentanyl is not the kind of drug you'd find in your medicine cabinet. So who would know how this drug works, and have access to it? Kristin for one, because she is a toxicologist.

She also knew that her office did not routinely test for fentanyl in autopsies. And her boss and lover, Michael Robertson, knew that, too. In fact, fentanyl was missing from the place where Kristin worked - but she says she didn't take it.

*****

But if Greg did indeed kill himself with fentanyl, how is it possible that he left behind no evidence?

Kristin's lawyer, Alex Loebig, says there's no evidence because Greg got rid of it, to make it look like murder.

If he killed himself and got rid of the evidence, Greg was either very crafty or very lucky. Most experts say an injection would knock him out immediately, so he'd have to use the patches. The defense, however, argued that he drank it from a glass found at his bedside - which was never tested by police.

Prosecutor Dan Goldstein, however, says that theory doesn't explain one crucial piece of evidence: Although Greg's body had needle marks from shots administered by paramedics, there was one extra needle mark. That needle mark, he says, is where Kristin may have injected her husband with fentanyl.

Also, why not leave a suicide note? Loebig says Greg's final wish may have been revenge against Kristin.

And how about the rose petals? Goldstein argued that Kristin got the idea from the movie and was trying to create a melodramatic suicide scene.

Although the evidence, at best, was circumstantial, it was enough to charge Kristin with murder. After six months in the Las Calinas Detention Center, Kristin was freed on $1.25 million bail.

She's the only defendant in the murder trial, but the prosecution believes her lover, Michael Robertson, somehow helped Kristin carry out the murder.

Robertson, who was fired from the medical examiner's office for not reporting Kristin's drug use, is an Australian national. Shortly before Kristin was arrested and charged with murder, he went back to Australia. He says, however, that he is not hiding out in Australia, and that he is innocent.

But the prosecution says Robertson had a motive and opportunity. He and Kristin were seen together several times the day of the murder, both in and out of the office, having what witnesses described as "emotional" conversations.

Robertson claims that he had just learned that Kristin was using meth again, and he was confronting her about that. He says they were not plotting a murder.

Since returning to Australia, Robertson says he has not had contact with Kristin and is separated from his wife. After months of searching, he finally found a job in the science field. But he admits he fears that U.S. authorities will one day apply for his extradition, even though he believes his former girlfriend is not capable of murder.

While prosecutors have decided not to seek the death penalty against Kristin Rossum, they want to send her to prison for the rest of her life. Kristin, however, says her adultery was her only crime.

*****

Just before the trial was to begin - almost two years after the death of Greg de Villers - another important piece of evidence surfaced: Kristen's receipt from a supermarket on the day Greg died. She bought soup, cold medicine and a single rose.

Kristin says she bought a yellow rose and gave it to Robertson. But for the
prosecution, the rose only confirmed earlier suspicions that Kristin was trying to stage a suicide scene from one of her favorite movies, "American Beauty."

During her trial in October 2002, Kristin became the media's main attraction. Cameras, banned from the courtroom, followed her fashionable entrances and exits. She was on the witness stand for more than eight hours.

The prosecution spent seven and half hours on closing arguments; the defense summed up its case in fewer than two hours. The jury deliberated for eight hours.

The verdict: She was found guilty of the murder of her husband, and sentenced to life in prison with no chance of parole.

Her parents say an appeal and a new trial are now their only hope.

 
 

Judge cuts $90 million from Rossum murder verdict

By Danna Littlefield - UTSanDiego.com

June 17, 2006

A judge has reduced the damages that a jury awarded to the family of man who was fatally poisoned by his wife from $104.5 million to $14.5 million in one of San Diego's most notorious murder cases.

The Superior Court jury returned the judgment against Kristin Rossum, a former county toxicologist who was convicted in 2002 of murdering Gregory de Villers, in a civil trial March 20.

Judge John S. Meyer reduced the amount last week, lowering the punitive damages in the case from $100 million to $10 million, finding the ratio between the punitive and compensatory damage amounts was too large and therefore violated due process. The jury's award of $4.5 million compensatory damages stands.

The family agreed to the reduction to avoid another trial.

“Essentially, in our view, the difference in amount wasn't worth seating a jury and trying that very general issue all over again,” said John Gomez, the family's attorney.

At the end of the two-week trial, the jury determined that Rossum should pay $4.5 million to the de Villers family as compensation for their loss and $100 million to prevent her from profiting if she were to sell the rights to her story in a book or movie deal.

Rossum, who is serving a sentence of life without the possibility of parole at a women's state prison in Chowchilla, did not appear in court during the civil trial.

In another ruling yesterday, Meyer ordered the county of San Diego, which had employed Rossum, to also pay the de Villers family more than $27,500 to cover costs incurred before and during the trial.

That amount is in addition to the $1.5 million the jury required the county to pay, after finding its officials partially responsible for de Villers' death.

During the criminal trial, prosecutors said Rossum – who had a history of methamphetamine use – poisoned her husband in their University City apartment with a mixture of narcotics she stole from work, including fentanyl, a drug about 100 times stronger than morphine.

An audit conducted after de Villers' death revealed that several drugs, including fentanyl and methamphetamine, were missing from the Medical Examiner's Office, according to the testimony. Rossum's DNA was found on drug paraphernalia recovered from her work station.

Gomez told the jury in the civil trial that the county never asked Rossum any questions about drug use when she applied for a toxicology position at the Medical Examiner's Office in 2000.

He also argued that county officials didn't properly secure the drugs in the office and did little, if anything, to stop an affair between Rossum and her married boss.

Deborah A. McCarthy, senior deputy county counsel, argued during the trial that the county had no way of knowing that Rossum would kill her husband and that only Rossum could be held responsible for her crime.

McCarthy said in an telephone interview yesterday that the county plans to appeal the judgment within the next two weeks.

Rossum, acting as her own lawyer, filed a request for a new trial May 9, arguing that the $100 million punitive award was excessive and the product of “passion and prejudice.”

Rossum said she has not written a book or authorized anyone to do so on her behalf. She said she has always maintained her innocence and is appealing the guilty verdict in her criminal case.

She said she would write a book only after she is relieved of her conviction, according to court documents.

 
 

The Rose Petal Murder

By Seamus McGraw - TruTV.com


Perfect Poison

It was all so perfectly orchestrated, so operatic in its sweep and tone. Greg deVillers, a young man just a few days shy of his 26th birthday, lay dead on the floor of his La Jolla bedroom. Rose petals covered his chest. Beside his lifeless head lay a copy of his wedding picture, taken less than two years earlier: a frozen shard of a perfect moment, or so it seemed.

Nearby, a crumpled love letter had fallen to the floor. His wife, Kristin Rossum, had received it from another man, the dashing Australian doctor for whom she worked. Beside the letter was Kristin's journal in which she confided to no one in particular that she feared that her marriage had been a mistake.

"Kristin is the most wonderful person I've ever met," deVillers had said on videotape at his wedding. "I just can't wait to spend the rest of my life with her."

And on the surface, it seemed that he had gotten his wish. It all seemed so obvious. Broken-hearted over his wife's affair, unwilling to face the future without her, deVillers had taken his own life.

Or had he?

In what would become known as the Rose Petal Murder Mystery, authorities would soon come to suspect that deVillers' own wife, a 26-year-old blond beauty, the daughter of well-respected university professors, used the knowledge she had gained as a toxicologist for the San Diego Medical Examiner's office to poison her unsuspecting husband with a deadly cocktail of drugs.

Among the narcotics found in his system was fentanyl, a synthetic opiate 100 times more powerful than morphine.

It was a drug, authorities would later say, that Rossum knew her own office never tested for and which she believed medical examiners would never detect.

"It was the perfect poison," Deputy San Diego District Attorney David Hendron has said.

But was it the perfect murder? Or was it a carefully orchestrated suicide by a desperate husband bent on killing himself and destroying his unfaithful wife in the process?

To determine that, investigators had to follow a twisted trail of drugs and lies and sex that wound from the comfortable suburbs of Los Angeles County to the seamy streets of Tijuana, Mexico, and into the inner workings of the San Diego County Medical Examiner's Office.


The Thorn in the Rose

Photographs from Kristin Rossum's childhood paint a picture of a perfect suburban childhood: A little girl in a ballet outfit dancing "The Nutcracker" — a laughing child enjoying holidays at home. Bright and vivacious and, above all, pretty, she modeled as a child for department stores and excelled at school. But there was a darker side to the attractive young woman who would later become a chemist and toxicologist. According to court records, she had an almost insatiable appetite for crystal methamphetamine or speed.

Rossum was first introduced to the drug in her junior year at Claremont High School in eastern Los Angeles County. It was just before a football game, and one of her friends cut a few lines of crystal meth and suggested that that they smoke it together. "I remember it feeling good, a kind of euphoria," Rossum would later tell the court. "You feel very revved up and energetic and happy."

Within a few weeks, the 16-year-old was a regular user — a tweaker. It didn't take long for the ill effects of the drug to become evident. A straight-A student, her grades started to fall. She lost weight and began to withdraw from her family and her non-drug-abusing friends. Little by little, authorities would later say, she began to develop the character traits that all addicts hone to survive. She learned to lie, and to manipulate others, authorities say. She also learned to steal.

At first, her parents, Ralph and Constance Rossum, overlooked the changes in their daughter's behavior. But eventually they could no longer escape the consequences of Kristin's addiction. In April 1993, they returned from a cruise to find their credit cards, personal checks and a video camera missing. They confronted her, and she claimed, according to court records, that some of her druggie friends had stolen the stuff. She admitted, however, that she had used some of the cash to buy drugs.

Perhaps out of a desire to protect their daughter, authorities speculate, the Rossums never mentioned the incident to police. And as time passed, Kristin Rossum's behavior became increasingly erratic. By the end of 1993, things came to a head, Contance Rossum would later testify. Convinced that his daughter was still using drugs, Ralph Rossum tried to search her backpack. Kristin struggled with him, and he struck her several times on the arm. The blows were hard enough to leave bruises. Kristin — who later said she was overcome by shame and self-loathing at that moment — then grabbed a kitchen knife and slashed at her wrists. When that didn't work, she ran upstairs to the bathroom and began hacking at her wrists with a razor, sobbing through the locked door that she was "worthless" and that her parents would be better off without her. "I was mortified," she would later tell the court. "I felt devastated ... I didn't know how to deal with the situation ... I wanted them to see how sorry I was."

Even then, there were no immediate consequences, the Rossums would later testify. The wounds on Kristin's wrists were superficial and her parents treated them. Constance Rossum later said they were "afraid of what would happen if they took her to the hospital."

But if the Rossums hoped that the whole ugly incident might simply be forgotten, they were sorely disappointed a few days later when a teacher noticed the bruises and marks on Kristin's arms and wrists and summoned police officers to school to investigate possible child abuse.

Claremont Police Officer Larry Horowitz, who investigated the complaint, testified that the girl told him that her father had struck her and that her mother had "called her a slut and said she was worthless."

But after interviewing her parents, Horowitz concluded there had been no abuse.

For a time, it seemed that Kristin Rossum might beat her drug habit. At various times, her parents testified, they tried to enroll Kristin in different programs, always on an outpatient basis. For a while, it would appear that she would stay clean, but soon, the whole horrible cycle would begin again, her parents testified.

In January 1994, Constance Rossum found a glass pipe tucked inside a bra in her daughter's underwear drawer. At first, the mother said, she didn't realize what it was. But when it dawned on her that her daughter was using drugs again, she reluctantly called Horowitz. When the officer arrived, the girl was obviously high. He handcuffed her, arrested her and held her for several hours at the Claremont municipal jail.

Authorities said it was a measure of her parents' blind devotion — codependency some might call it — that in later statements they overlooked that 1994 incident and insisted that she was never arrested.


A Run for the Border

More than anything else in the world, Ralph and Constance Rossum wanted to give their troubled daughter a fresh start, and so, in 1994, her university-professor parents used their influence to enable Kristin to withdraw from Claremont High School and enroll part time at the University of Redlands in suburban Los Angeles.

During that time, the parents later testified, Kristin and her father began attending meetings of a 12-step program together, and once again, it appeared that the young woman with so much promise was on the road to recovery. In fact, she seemed to be doing so well that in the fall of 1994, her parents allowed her to move into a dorm on campus.

It was, authorities would later say, a mistake.

Not long after she moved into the dorm, a friend cut a couple of lines of crystal meth on a mirror and handed it to Rossum. She thought she could handle it, Rossum later testified. She thought she could use it only "before big exams. I thought I could study harder."

But she had forgotten how good it felt when the smoke caressed her lungs and sent shock waves of euphoria to her extremities. And she forgot how quickly the euphoria fades and how "it can snowball" so that it becomes necessary to use more and more of the drug just to function at all.

By the middle of the fall term, she was smoking meth every day, and when Christmas rolled around and her mother drove to Redlands to bring her home for the winter break, Kristin Rossum had vanished. She had simply run away.

Constance Rossum notified police, warning them that the missing girl was "probably suicidal and depressed." But there was little police could do. Privately the couple feared that their daughter was beyond salvation.


An Angel on the Bridge

It was a chance meeting, an encounter on the pedestrian bridge that leads from Chula Vista , California, to the raucous Mexican border town of Tijuana. After a month of drinking and smoking meth and hiding from her frantic parents, Kristin Rossum had made her way by train to the border — authorities speculate that she was on her way to buy drugs from her supplier — when she dropped her jacket on the bridge.

Before she could bend down to pick it up, Greg deVillers did it for her.

Handsome and bright, the son of a prominent plastic surgeon with offices in California and Monaco, he seemed almost angelic — at least that's the way Constance Rossum would later describe him — and there seemed to be an almost immediate connection between the two young people.

In a scene that seems to have been drawn from a romantic film, the two chatted with each other in French while Greg's youngest brother, Bertrand, with whom he had made the trip to Tijuana, paced nearby.

Maybe there is no such thing as love at first sight, but from that moment, Greg's brothers testified, Greg de Villers was thoroughly smitten with Rossum.

That night, Rossum returned with de Villers to the Southern California apartment he shared with Bertrand, another brother, Jerome, and Christopher Wren, a friend. She remained there with de Villers, and, within a few weeks, the couple professed their love for each other.

That did not please Greg deVillers' brothers. They were painfully aware of Kristin's drug problem — a problem she had tearfully admitted to her boyfriend — and they had noticed that things had been missing from the apartment since she had moved in. They urged him to get rid of her.

But deVillers was adamant: he told them that he loved her and he had vowed to help her kick her addiction.

He might have felt differently had he known about a conversation Rossum is reported to have had with Wren one night while her boyfriend was out. According to a statement Wren later gave to authorities, Rossum told her boyfriend's roommate that she felt she was making the wrong choice and should be with him, not de Villers.

But deVillers never learned of that conversation.

Nor did he learn that she had never terminated her relationship with an old boyfriend. In fact, according to court records, Rossum and the old boyfriend had spent a night together before she left Redlands for Chula Vista , and when he ran into her — months later — she explained her absence with a bizarre tale of how she had been kidnapped.

By May 1995, deVillers believed he had kept his vow. He had done everything he could for her, and by all accounts it looked as if Kristin Rossum had kicked her drug habit for good.

She had reestablished contact with her parents, who, as Constance Rossum would later put it, viewed deVillers as an "angel" for the good he had done for their daughter, and for the first time in a long time, it looked as if Kristin Rossum was bound for success.

In an interview with "48 Hours" the CBS news magazine, Constance Rossum put it this way, "We always called Greg our godsend from heaven. I mean, of all the people she could have met, to have met a nice, decent person who wanted to take care of her, we thanked God".


Starting Over

With her mother's help, Rossum was soon enrolled at and the couple moved into an apartment on campus reserved for married couples. Her mother — who had always gone to great lengths to protect the young woman — had filled out the application for enrollment, omitting the fact that Rossum had effectively flunked out of University of Redlands the previous year.

She was a stellar student, professors would later say — one described her as among the most promising students he had ever taught. According to testimony from friends and acquaintances, she seemed happy. She was earning straight As and in 1998, she graduated cum laude. As Constance Rossum would later testify, "our old Kristin was back," and deVillers seemed to be the cause.

After five years of living together, the couple decided to marry. The date was set for June 1999.

Their romance was, by all outward appearances, a storybook love affair. When they were together, Rossum and deVillers acted "like a couple of lovebirds," Constance Rossum testified.

But there was some tension beneath the surface.

Her closest friends knew that Rossum seemed to have a hard time remaining monogamous. During at least a portion of her relationship with deVillers she maintained a flirtatious — some would say graphically flirtatious — correspondence with at least one former boyfriend, as well as with at least one other man, according to prosecutors.

She even had second thoughts about the marriage. A month before she was scheduled to walk down the aisle, she broke down in tears and told her mother that she wanted to cancel the wedding. Her mother chalked it up to pre-wedding jitters and urged her to go through with the marriage.

"I gave her the wrong counsel, I'm afraid," Constance Rossum would soon tell the court.

The wedding was a picture-perfect event, full of laughter and love, according to those who attended. Kristin Rossum seemed happy and deVillers, who, according to those closest to him, had always struggled with his feelings over his parents' acrimonious divorce a decade earlier, seemed to be ecstatic. He told friends within earshot of a video camera that he couldn't wait to spend the rest of his life with his new wife.

But within a few months, Kristin Rossum had already convinced herself that the relationship was turning sour. In January 2000, less than seven months after the wedding, Kristin Rossum told her mother that she felt trapped "like a bird in a cage."

If deVillers was aware of his wife's unhappiness, he never showed it, his brother Jerome would later testify. He never spoke of marital discord, Jerome deVillers insisted. In fact, colleagues at a genetics research firm where deVillers worked told authorities that the young man seemed to be happy and devoted to his wife. He made all kind of plans, his friends told authorities. He talked about taking a weekend in Las Vegas , or a snowboarding trip. He tried to enlist some of his buddies for a fishing trip in Mexico. He bragged about his wife's accomplishments and even talked of starting a family. He told one friend that he wanted all girls.

Kristin Rossum, meanwhile, was painting a far bleaker picture of her marriage and of her husband. She complained to friends that her husband was moody, controlling and domineering. In an interview with "48 Hours," she put it this way: "Greg became very, very clingy ... I was trying to pull myself away and have some sort of independence."

In an e-mail to her 23-year-old brother Brent, written 11 months after the wedding, Rossum admitted that she now believed the marriage was a mistake. "I should have trusted my own instincts and called off the wedding," she wrote. "Now I'm stuck with the heavy realization that I married the wrong person."

Within a few more months, Kristin Rossum would apparently abandon her desire for freedom and independence, exchanging it for a shot at what her lawyer would later describe as wild passion with her new boss, Michael Robertson, a handsome — and married — Australian toxicologist who had become her supervisor at the San Diego Medical Examiner's Office.

Despite her history of drug abuse, Kristin Rossum had first been hired at the Medical Examiner's Office as an intern while still in college. She showed so much promise that when she graduated she was hired full time, without so much as a background check or a drug test.

One of her chief responsibilities in the office was to maintain the drug log, recording and managing samples of every narcotic, legal and illegal that came into the medical examiner's office in connection with a death.

Her job also put her into close contact with Robertson, a man she would later describe as "a big hunk of an Australian guy."

A self-professed expert in date rape drugs, among other things, the tall, blond, ruddy-cheeked Robertson had first met Rossum during several visits to the office in the spring of 2000. Almost immediately, there was a spark between the two. Like Rossum, Robertson said he too was locked in a faltering and unfulfilling marriage.

By early May, Rossum started to receive personal e-mails and notes from her boss. A later search of her desk turned up notes from Robertson, IOUs for things such as "a night of lovemaking." On occasion, Robertson would saunter into work with a bouquet of flowers, co-workers later told authorities. The flowers invariably ended up on Rossum's desk. Slowly, it began to dawn on her that she no longer viewed Greg deVillers as a romantic partner at all. Whatever passion she had, she devoted entirely to Robertson who, she said, had called her "the future mother of my children," and his "destiny."

By June, the pair had consummated their relationship, according to court records. She commemorated the occasion with a gift, a copy of the book "52 Invitations to Great Sex," inscribed with the words "Well, sweetheart, together we'll enjoy a lifetime of passion."

"I felt I was in love," Rossum said. "It was very romantic, very exciting, very passionate."

In August, Rossum turned to her best friend, Melissa Prager, for help, or at least for solace. Prager later told the court that her old friend confided that she was madly in love with her boss, but was "terrified" about the prospect of telling her husband about her affair and her desire to leave the marriage.

By October, while Greg deVillers was still telling his friends and family members about his plans to raise a family with his wife, Kristin Rossum had apparently made up her mind. She had told close friends that she was looking for an apartment and planned to leave deVillers.

It's unclear exactly how deVillers learned of his wife's infidelity.

Rossum has always maintained that it was she who told Greg deVillers about the affair and that her admission sent her husband spiraling into an ever-deepening depression. When she told him, she said, deVillers demanded that she give him Robertson's phone number, and when she did, he called Robertson and demanded that they break off their relationship.

Robertson's answer — if there was one — is not part of the official court record. But his response, he would later admit to police, was obvious. The relationship continued.

Authorities have a different scenario: They contend that deVillers discovered the relationship by accident in the fall of 2000 when, despite rumors about their romantic involvement buzzing through the office, their superiors sent them to Milwaukee to attend a toxicology conference. Although they were booked into different hotels, Robertson and Rossum spent several nights — from September 30 to October 7 — in a hotel room they had rented, according to court records. When one of her co-workers spotted her during the week, she wasn't wearing her wedding ring.

By day, Rossum and Robertson attended seminars together.

Among the lectures was one on the deadly effects of fentanyl, a clear, odorless synthetic narcotic that is by some estimates as much as 100 times more powerful than morphine. Usually administered to terminal cancer patients when nothing else will ease the pain, the drug is so potent that only a few drops can kill. It is the same drug that Russian commandos are believed to have pumped into a Moscow theater in the fall of 2002 to subdue a gang of Chechen separatists who were holding hundreds of people hostage inside. One hundred twenty hostages and terrorists died as a result of overexposure to the drug.

It is also a drug that is so rarely prescribed and used that most medical examiner's offices — including the office in San Diego — do not routinely test for it when investigating overdose deaths. In fact, of the hundreds of cases Rossum had worked on in the three years that she had been in the medical examiner's office, only seven had involved fentanyl, even peripherally. She had seen 15 fentanyl patches and one vial of the drug in powder form. In each case, she recorded the samples in her log book before the deadly narcotic was locked away in a drug vault for which Robertson held the key.

A few days after she returned from Milwaukee, Rossum sent an e-mail to her husband. In it, she told him that she was taking three prescription drugs, including an anti-depressant, "to help with the severe anxiety I've been experiencing as a result of our relationship."

"You've hurt me beyond repair," she wrote to her husband.


Relapsed

Perhaps, as Rossum has said, she believed she would finally find fulfillment in her relationship with Robertson. But her giddiness over him may also have had something to do with the fact that she had also turned back to some of her old bad habits.

Not only was she taking prescription drugs, her old addiction to methamphetamine — which she had managed to control in her years at the medical examiners office — once again reared its ugly head.

The office, which had always had a reputation as a candy store for drug-abusing employees, had lost track of some methamphetamine — Kristin Rossum's drug of choice. Robertson later admitted that he found traces of it in his girlfriend's desk. But rather than dismiss her or turn her over to the police, Robertson followed the same path that Kristin Rossum's parents had when they first discovered her drug abuse years earlier.

Robertson later admitted to authorities that he flushed the drug down the toilet. And then he covered for her.

By early November, Rossum was finally ready to sever her relationship with deVillers, though she insisted that she wanted only a "trial separation."

She would later tell authorities that deVillers all but collapsed when she told him she meant to leave him. He lay in bed for several days. "It was painful for me, too, to see someone you love hurt so much," she would later tell the court. To deVillers, she insisted that Robertson was the root and branch of all their marital difficulties. In her mind, Robertson was a symptom, not the cause. The relationship was doomed, she said. Nothing that deVillers could do would ever revive it. Not even the dozen red roses he had bought her a few days earlier for her 26th birthday.

On the Thursday before deVillers' death, Rossum would later say, all the anger and pain, the sense of betrayal and hopelessness that had shrouded their tiny house, finally erupted. DeVillers, she said, had noticed an envelope sticking out of her back pocket. It was a love letter Robertson had written to her.

The young man grabbed for it, wrestling Rossum to the ground as he did. She would later tell authorities that for the first time in her entire relationship with deVillers, he had frightened her at that moment, truly frightened her. Brandishing the letter in his hand, he threatened to take it to his wife's office and to expose her affair with Robertson, as well as her recurring drug abuse.

Rossum said she grabbed the letter from her husband and shredded it. But he gathered the pieces together, and as she watched, convinced that there was now no turning back, her husband "obsessively" tried to piece the letter back together.

"It was like a scene out of 'The Shining,'" Constance Rossum would later say, referring to the gory horror film starring Jack Nicholson as a troubled husband driven to murderous rage.


Final Days

Two nights before deVillers died, Rossum's parents visited the couple for dinner. When Ralph Rossum first spoke to police in the hours following deVillers' death, he told them that the family had shared a "pleasant evening."

Later he would amend the story, telling the court that deVillers seemed to be deeply distressed, "a man spiraling down." DeVillers drank heavily that night — wine and gin — and at least twice, Ralph Rossum told the court, he had to tell his agitated son-in-law to lower his voice. Though the young couple did not discuss their marital problems, deVillers, in what Constance Rossum would later describe as a voice fraught with melodrama, talked at length about the dozen red roses he had given to Kristin Rossum for her birthday a few days earlier. He seemed particularly obsessed by the fact that all but one of the roses had died and shed their petals. That last rose, she said, had terrible significance to her son-in-law.

As Kristin Rossum put it in a television interview months later, "he was making a big deal of the last rose standing. I think he was just making a statement that he knew our relationship was over."

At one point during the strained and uncomfortable evening, Rossum would later say, she went off to the bathroom and her mother followed her. The young woman said she broke down and tearfully admitted that her marriage was over and that she wanted to leave de Villers.

Her mother, as she always had, vowed to help her. She promised to help her find an apartment.

Later that night, after deVillers went to bed, Rossum called Robertson on her cell phone.

She said she just wanted to hear a comforting voice.

She also disposed of the last rose standing.

According to police reports, on the morning of November 6, the day deVillers died, Rossum claimed that her husband was ill. He seemed groggy, perhaps the result of his emotional distress, or the lingering effects of the drinking two nights earlier, or maybe it was the medication she believed he was taking to combat a cold.

She telephoned his office and told his employers that he wouldn't be coming in to work that day.

That struck deVillers' boss, Terry Huang, as odd, Huang later told reporters. Huang was so concerned that he called deVillers at home, twice. The first time, about 10 a.m., he got no answer. The second call — placed at 7 p.m. — was answered by Rossum, who, he said, seemed edgy and uncooperative. Her husband, she said, was sleeping.

An hour later, she made a 911 call.

"My husband," she sputtered into the phone, "is not breathing."

When paramedics arrived, they found deVillers lying on his back on the floor of the couple's bedroom. Scattered across his chest they found rose petals, identical, it seemed to the one last rose he had spoken of. They also found his wedding picture on the bed near his pillow, and his wife's journal in which she had said that she wanted to leave the marriage.

What's more, Rossum told paramedics and police, her husband had admitted to taking some depressants — Clonazepam, generally regarded as a date-rape drug and Oxycodone, a powerful opioid similar to Vicodin — drugs that she claimed to have bought years earlier in Mexico to help ease the pain of coming down from her daily doses of methamphetamine.

It was obvious, authorities at first believed that Greg deVillers, had decided that if he couldn't live with Rossum, he couldn't live at all. Robertson said so at the daily medical examiner's meeting the next day. It was, co-workers say, the first time since he arrived in the office that Robertson had ever delivered a report on a death.


Suspicions Aroused

If authorities were at first content to accept deVillers' death as the tragic, suicidal end of an overwrought love triangle, deVillers' family was not. San Diego Assistant District Attorney Dave Hendron credits Jerome deVillers' relentless insistence that police look deeper sparking an investigation that lasted nearly eight months.

Jerome deVillers testified that he was certain that his brother had not committed suicide, and that his sister-in-law had somehow engineered his death, and then, drawing her inspiration from her favorite film, American Beauty, created an elaborately operatic scene, complete with the scattered rose petals to add a sense of melodrama.

The dead man's brother would later tell the court that he was so angry and obsessed over deVillers' death that he stayed up nights for months, trying to put the pieces of the mystery together. Always, he ended up with the same conclusion: Greg deVillers had not killed himself.

At first, authorities were skeptical. But then something happened that raised their suspicions.

Fearing that the medical examiner's office, already under scrutiny for alleged mishandling of narcotics, would face further approbation if it conducted the autopsy on the husband of one of its own employees, San Diego County Medical Examiner Brian Blackburn sent samples taken from deVillers' body to a Los Angeles lab for testing.

There wasn't as much material available for testing as pathologists generally like. Immediately after deVillers was declared dead — while his body was still at the hospital — Rossum had donated some of the most water-retaining, and therefore forensically useful, parts of his body, his eyes and parts of his skin, for transplant.

But toxicologists in Los Angeles had enough to work with to find the cause of death. It was fentanyl, the same deadly drug that Rossum and Robertson had studied during their weeklong visit to Milwaukee. In fact, toxicologists found 57 nanograms of the drug in deVillers' tissue, seven times the amount it would take to kill him.


Closing In

The presence of that much fentanyl alone wasn't enough to make a murder case, Hendron has said. It was still possible that Rossum was right when she suggested that deVillers had taken his own life by overdosing on the drug. Possible, but unlikely.

If deVillers had intentionally taken that much of the drug he would have fallen unconscious almost instantly. He never would have had time to dispose of the container the drug had been in. There would have been some residue somewhere. But a search of the bedroom had turned up nothing, other than a glass of clear liquid on the nightstand. The glass and its contents were never tested, Hendron acknowledged, but even if they had contained traces of the drug, there still would have been some evidence left behind at the scene indicating where the drug came from and how it was administered.

Then there was the other finding from the autopsy — that deVillers' lungs were filled with fluid, a sign that he had been unconscious or close to unconscious for "a minimum of six to 12 hours" before he finally died. Had he been, it seemed beyond doubtful that he could have engineered such a dramatic and flawless suicide, Hendron said.

Within a month of deVillers' death, attention was already beginning to focus on Rossum and Robertson. The pair had been dismissed from the medical examiner's office after word of their affair and Robertson's decision to hide Rossum's drug abuse leaked out.

Investigators began combing through the clues. By December, an audit at the medical examiner's office found that a small amount of methamphetamine was missing from the office's drug locker. Fifteen fentanyl patches and one vial of the drug in its powdered form were also gone from the drug locker to which Robertson held the key.

That discovery became more intriguing when authorities learned that all 16 samples were from cases Rossum had worked on.

Armed with that information, investigators revisited Kristin Rossum's account of the events that day.

In interviews with police, Rossum said that she had called her husband's employer that day to report that he was not coming in and then left for work herself. Her husband, she said, was still asleep. She maintained that she returned home around lunchtime and that her husband was groggy but awake. They shared soup, she said, and then she left.

She came home again that evening, saw her husband sleeping again, kissed him on the forehead, and then went into the bathroom to shower and shave her legs. When she emerged, she told police, she found her husband unconscious on the bed and called 911.

She was still on the phone with 911 — the dispatcher had instructed her to roll her husband onto the floor to perform CPR — when paramedics arrived.

Paramedics later testified that it seemed strange that when they rolled the unresponsive man over, they found no rose petals beneath him. Surely if deVillers had covered himself with rose petals while he was still on the bed at least one of them would have fluttered to the bedroom floor when his wife rolled him over, investigators thought.

As the investigation progressed, Rossum maintained her innocence. She maintained that in her first interviews with police, she had come clean about her relationship with Robertson and her drug abuse — proof, she insisted, that the authorities were wrong in their suspicion that she killed her husband to prevent him from revealing her indiscretions.

But authorities weren't convinced.

As they probed deeper, they found even more inconsistencies in the case, all of which seemed to implicate Rossum and Robertson in deVillers' death.

Some were circumstantial: Robertson's frantic efforts to dispose of a package of love letters after his first interview with police, for example. The love letters were later recovered. There was testimony that Robertson had rushed to the hospital at 10 p.m. the night deVillers died to be at Rossum's side and spent, according to court papers filed later, "several intimate hours" with the freshly widowed young woman.

But the most damning piece of evidence was a receipt from a local supermarket issued at 12:41 p.m. on the day deVillers died, about the same time Rossum maintained she was splitting a bowl of soup with her allegedly suicidal husband. Using a credit card, Rossum had purchased a single rose. Though she would later insist that she had purchased a yellow rose for her lover, authorities would suggest that what she really bought was a single red rose whose petals she planned to scatter over her dead husband's body.


Epilogue

Eight months after deVillers' death, Rossum was formally charged with murder. By that time, Robertson, whose visa had expired when he was fired from his job in the San Diego Medical Examiner's Office, had returned to his native Australia, where, he said, he was caring for his terminally ill mother.

On November 13, 2002, more than two years after DeVillers' death and on the very day he would have turned 29, a three-week murder trial ended with Rossum being convicted of first-degree murder with special circumstances. On December 12, she was sentenced to life in prison without parole.

At the sentencing hearing, Jerome deVillers, who had pushed so hard to solve the mystery of his brother's death, said it was a bittersweet moment. "Not long after Greg's death I suspected that Kristin killed Greg ... I want and have always wanted her to tell the truth. It has taken two years to prove this ultimate crime of betrayal in court. This does bring some closure; however, I am still without my brother."

Rossum's conviction does not mean that the case is over, according to Hendron. Authorities are still probing the case and may yet present a case to a grand jury charging Robertson in connection with deVillers' death. Hendron declined to discuss the probe, saying only, "We don't comment on ongoing investigations."

Robertson, who was described by prosecutors during Rossum's trial as "an unindicted co-conspirator," maintains his innocence, and has said that he will fight any effort to extradite him to the United States.

But Robertson and Rossum face other problems as well. In December, the surviving members of the de Villers family filed a multimillion-dollar wrongful death suit against Robertson, Rossum, the county of San Diego and the medical examiner's office, alleging that all were complicit in deVillers' death.

No date has been set for the civil trial.

In the meantime, Rossum, who has since declared bankruptcy, and her parents have vowed to appeal. As Ralph Rossum put it in a brief written statement released immediately after his daughter's sentencing, "We understand there are solid grounds for appeal and intend to pursue them vigorously."

 
 

United States Court of Appeals
For the Ninth Circuit

Rossum v. Patrick

Kristin ROSSUM, Petitioner-Appellant,
v.
Deborah PATRICK, Warden, & Edmund G. Brown Jr., Attorney General of the State of California, Respondents-Appellees.

No. 09-55666.

Argued and Submitted April 6, 2010. -- September 23, 2010

Before DOROTHY W. NELSON and STEPHEN REINHARDT, Circuit Judges, and NANCY GERTNER, District Judge.**

William J. Genego, Nasatir, Hirsch, Podberesky & Genego, Santa Monica, CA, for the petitioner-appellant.Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Kevin Vienna, Supervising Deputy Attorney General, Kyle Niki Shaffer, Deputy Attorney General, San Diego, CA, for the respondent-appellee.

OPINION

State prisoner Kristin Rossum appeals the district court's denial of her petition for a writ of habeas corpus. We reverse and remand for the district court to hold an evidentiary hearing on Rossum's claim that she was deprived of her Sixth Amendment right to the effective assistance of counsel.

Rossum was convicted of murdering her husband, Gregory de Villers. The prosecution's theory of the case was that Rossum poisoned de Villers using fentanyl, a powerful synthetic opiate. Rossum contends that her counsel rendered ineffective assistance by failing to have de Villers's autopsy samples tested for fentanyl metabolites, a test that would have resolved whether de Villers had in fact ingested fentanyl or whether fentanyl found in the samples was a product of laboratory contamination subsequent to his death. Rather than investigating, Rossum's counsel simply conceded that the cause of death was fentanyl.

The prosecution's case was purely circumstantial, hinging in large measure on toxicological and medical evidence which was equivocal. The fentanyl levels in de Villers's autopsy samples were extraordinarily, even unnaturally, high. While these elevated concentration levels suggested that death was immediate, they were at odds with medical evidence which indicated that de Villers lingered in a state of unconsciousness for several hours before he died.

The potential for contamination of the samples was not remote. Rossum and her love interest both worked at the San Diego County Office of the Medical Examiner (OME), which ordinarily would have performed the toxicological analysis of de Villers's samples. The OME was sufficiently concerned about the possibility of a conflict of interest that it decided to send the samples to another lab for testing. Nevertheless, the samples were stored in an unsecured refrigerator at the OME for thirty-six hours.

In addition to opportunity, there was motive to contaminate in the swirl of personal relationships among the OME's employees. But even if those motives are speculative, as the district court concluded, the samples could have been tested for contamination by analyzing them for the presence of metabolites of fentanyl, which are chemical compounds produced when the liver processes the drug. If no metabolites were found, it would have proven that fentanyl had not been in de Villers's body prior to his autopsy and thus could not have caused his death.

Without first having such tests conducted, Rossum's attorneys accepted the prosecution's theory that de Villers died from an overdose of fentanyl but claimed that he committed suicide. The medical and toxicological evidence, however, suggested that if fentanyl caused de Villers's death, it must have been administered to him multiple times. Since de Villers was too comatose to self-administer fentanyl in the hours immediately preceding his death, the defense's suicide-by-fentanyl theory was highly implausible. And the choice of this approach is particularly significant since there was an alternative cause of death consistent with the evidence and potentially consistent with suicide.

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's 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.

Given the limited record before us, however, we cannot determine whether Rossum is entitled to habeas relief. We thus remand the case for the district court to hold an evidentiary hearing, particularly, but not exclusively, with respect to prejudice.

BACKGROUND

I. Factual Background1

When Rossum met de Villers in early 1995, she was abusing methamphetamine. He helped her to stop using the drug, and they married in June 1999.

While in college in 1997, Rossum began working at the OME. After graduating summa cum laude with a degree in chemistry, Rossum was hired by the OME as a toxicologist in March 2000. (A toxicologist analyzes bodily fluids to determine whether drugs are present.)

Around the time that the OME hired Rossum, it appointed Michael Robertson to the position of Forensic Laboratory Manager. Robertson, an Australian citizen, had not previously worked for the OME. He replaced Russ Lowe, a longtime OME employee who had been serving as acting laboratory manager.

Rossum and Robertson-who, like Rossum, was married at the time-began having a sexual relationship in June 2000. Several OME employees suspected the affair. At trial, Lowe and OME toxicologist Catherine Hamm testified that some of Rossum's coworkers resented her for it, believing that she might receive special treatment from Robertson, who was her supervisor.

Rossum resumed using methamphetamine in October 2000. On Thursday, November 2, 2000, de Villers confronted her about his suspicions-that she was using drugs again and worse, that she was having an affair with Robertson. He demanded that she resign from the OME and threatened that if she did not, he would reveal her drug use and her affair to her employer.

Rossum testified that when de Villers awoke on the morning of Monday, November 6, he seemed “out of it”; his speech was slurred. She called his workplace at 7:42 a.m. and left a voicemail message stating that he was ill and probably would not come to work that day.

Rossum went to work at 8:00 that morning; coworkers saw her crying in Robertson's office an hour later. The manager of her apartment complex observed her running into her apartment at 12:10 p .m. At 12:41 p.m., Rossum purchased several items at a grocery store. According to Rossum, she returned to her apartment and ate lunch with de Villers. She testified that when she asked him why he had been so “out of it” that morning, he told her that he had taken some of her oxycodone and clonazepam, which she had obtained years earlier when she was trying to end her methamphetamine addiction. She testified that de Villers went back to bed after lunch.

Rossum returned to work, but left again at 2:30 p.m. The manager of her apartment saw her car in the parking lot of the complex at 2:45 p.m. She met with Robertson later that afternoon and stayed with him until about 5:00 p.m., when she returned to her apartment. She left her apartment again at about 6:30 p.m. to run some errands and returned home at about 8:00 p.m. Rossum testified that de Villers still appeared to be sleeping at that time. She kissed him on the forehead and then took a bath and shower. After the bath and shower, she found de Villers to be cold to the touch and not breathing.

Rossum called 911 at 9:22 p.m. The operator told her to move de Villers's body to the floor and attempt CPR. When paramedics arrived, they found his body on the floor with red rose petals and a stem strewn around him.2 Rossum initially told the paramedics that he had not taken any drugs as far as she knew, but later told them that he may have taken oxycodone.

De Villers was pronounced dead at the hospital at 10:19 p.m. While at the hospital, Rossum told a nurse that de Villers may have overdosed on oxycodone.

Dr. Brian Blackbourne, the San Diego County Medical Examiner, performed de Villers's autopsy. He determined that de Villers had been dead for at least an hour before the paramedics arrived. He testified that de Villers had developed early bronchopneumonia, a condition that results when secretions that are normally removed by the breathing process accumulate in the lungs. It occurs when a person is “unconscious or not breathing very deeply.” Dr. Blackbourne also noted that de Villers had approximately 550 milliliters of urine in his bladder, which was a significant amount and would have been “very uncomfortable” to a conscious person.3

The combination of the bronchopneumonia in de Villers's lungs and the amount of urine in his bladder led Dr. Blackbourne to conclude that de Villers had been immobile and not breathing properly for approximately six to twelve hours prior to his death.

Lloyd Amborn, the operations administrator of the OME, decided that an outside laboratory should perform the toxicological tests on the autopsy specimens taken from de Villers's body to avoid any potential conflict of interest. This was the first time Amborn had used an outside agency to conduct such tests.

After the autopsy, de Villers's specimens were supposed to be taken to the sheriff's office, which would then transfer them to the outside toxicology lab for testing. The specimens were placed in a cardboard box, with each individual container marked as a sample taken from de Villers's body. Because the individual at the sheriff's office who was supposed to receive the samples was not immediately available to take possession of them, the box was taken to the OME. The specimens remained in a refrigerator at the OME for approximately thirty-six hours and were then transported to the sheriff's crime lab on the morning of Thursday, November 9, 2000.

While the autopsy specimens were at the OME, anyone with a key to the building had access to them. The containers were not sealed; their tops could be pulled off and then replaced. Indeed, on Wednesday, November 8, 2000, Robertson commented to one of the toxicologists at the OME that he had looked at a sample of de Villers's stomach contents.

That same day, November 8, Russ Lowe-the veteran OME employee who served as acting laboratory manager before Robertson was appointed-called the police to report Rossum and Robertson's affair. In its closing argument, the prosecution characterized Lowe's call as a turning point that focused the police's attention on the possibility of foul play.

Toxicology tests showed that de Villers's autopsy specimens contained extremely high concentrations of fentanyl, as well as a smaller amount of clonazepam and a trace level of oxycodone. At Rossum's trial, Dr. Blackbourne testified that the concentration of clonazepam found in de Villers's blood was at the high end of what would be considered a therapeutic level, but that it was “not an overdose level” and “not fatal.” He conceded, however, that sometimes postmortem testing reveals a lower concentration of a drug than had previously been present in the body. As a result of such postmortem redistribution, what was a fatal concentration of a particular drug at the time of a person's death could be measured as being within the therapeutic range at the time of autopsy. The jury also heard testimony that oxycodone, which is an opiate, and clonazepam, a benzodiazepine, can have a “synergistic” effect on each other, meaning that each drug is made more powerful when taken with the other.

The discovery of fentanyl in de Villers's samples was significant and unexpected. Fentanyl is a synthetic opiate that is roughly 100 to 150 times more powerful than morphine. At the time of de Villers's death, the OME did not ordinarily test samples for fentanyl since it is not a regularly abused drug. However, Pacific Toxicology, the outside laboratory to which the samples were first sent, tested for fentanyl as part of its standard “drugs of abuse” screen. After receiving the test results from Pacific Toxicology, Dr. Blackbourne concluded that de Villers died of acute fentanyl intoxication.

Prior to Rossum's trial, de Villers's samples were also sent to two other laboratories for testing: the Alberta Office of the Chief Medical Examiner in Canada and Associated Pathologist Laboratories in Las Vegas, Nevada. As the following chart demonstrates, the concentration levels of fentanyl measured by the different laboratories varied considerably:

At Rossum's trial, the prosecution called Dr. Theodore Stanley as an expert witness on the properties and characteristics of fentanyl. Dr. Stanley testified that fentanyl is a potent and generally fast-acting pain reliever. The drug has one serious side effect; it can cause a person to stop breathing. Dr. Stanley testified that fentanyl begins to affect respiration at a concentration level in the blood of 2 ng/mL. At a concentration of 4 ng/mL, about half of “opioid naive” individuals-people without significant experience taking opiates-would be breathing very slowly or not at all. At 57 .3 ng/mL, the concentration found in de Villers's blood by Pacific Toxicology, no opioid-naive individual would be conscious or breathing.4

Dr. Stanley testified that the speed with which fentanyl takes effect depends on the manner in which the drug is administered: the peak effect occurs about sixteen hours after administration of a transdermal patch, twenty to thirty minutes after oral consumption, fifteen to twenty minutes after intramuscular injection, and five minutes after intravenous injection. He explained that fentanyl is not normally administered orally because when the drug is taken in this way, the liver destroys about 65 percent of it, leaving only about 35 percent to enter the bloodstream.

None of the three physicians who testified at Rossum's trial-Dr. Blackbourne, Dr. Stanley, or the defense expert on fentanyl, Dr. Mark Wallace-could provide a definitive opinion as to how the fentanyl was introduced into de Villers's body. Dr. Stanley, however, testified that the differing concentration levels in de Villers's system, along with the evidence indicating that de Villers had been unconscious and breathing shallowly for hours before his death, suggested that fentanyl likely had been administered to de Villers on multiple occasions.

After de Villers's death, the OME audited its impounded drugs and drug standards.5 It discovered that fifteen fentanyl patches and ten milligrams of fentanyl standard were missing. Rossum had logged in the fentanyl standard and had worked on each of the three cases in which the missing fentanyl patches had been impounded. The OME also determined that quantities of methamphetamine, clonazepam, and oxycontin (a time-released form of oxycodone) were missing.

II. Rossum's Trial and Post-Trial Proceedings

Rossum was prosecuted for the murder of de Villers with the special circumstance that the murder was committed by means of poison. Cal.Penal Code §§ 187, 190.2(a)(19). Her jury trial began in October 2002. At trial, the prosecution argued that Rossum poisoned de Villers with fentanyl, possibly after she gave him clonazepam but the clonazepam failed to kill him. The defense conceded that fentanyl caused de Villers's death but contended that de Villers committed suicide because he was despondent over his marital problems.

The jury found Rossum guilty in November 2002, and in December 2002 the court sentenced her to prison for life without the possibility of parole.

On June 13, 2005, the California Court of Appeal affirmed Rossum's conviction on direct review and denied her concurrently filed petition for a writ of habeas corpus. The California Supreme Court summarily denied her petition for review of her direct appeal.

On December 15, 2006, Rossum filed a petition for a writ of habeas corpus in the California Supreme Court.6 The petition asserted for the first time the claim at issue in this appeal-that Rossum's trial counsel rendered ineffective assistance by not having de Villers's autopsy samples tested for fentanyl metabolites despite the fact that such tests might have ruled out fentanyl as the cause of de Villers's death and thus disproven the prosecution's theory of the case. Instead, as the petition stated, counsel promptly conceded the prosecution's theory-that fentanyl was the cause of de Villers's death. Rossum supported her petition with a declaration from Dr. Steven H. Richeimer, a medical professor and practitioner with substantial experience in anesthesiology and requested an evidentiary hearing. Dr. Richeimer has overseen the administration of fentanyl on thousands of occasions and is well versed in the drug's characteristics and properties. His declaration explains that fentanyl “is a very rapidly acting drug.” As a result, “[i]f very high doses[were] rapidly administered” to de Villers, then he likely would have died “within minutes,” “not in a manner consistent with the 6-12 hours of impaired breathing and consciousness described by Dr. Blackbourne.” Alternatively, if de Villers absorbed fentanyl “gradually, perhaps through the stomach,” then he likely would not have survived “long enough for [his] blood levels to reach the extremely high levels” measured by the toxicology labs.

Dr. Richeimer's declaration states that contamination of the samples drawn from de Villers's body could explain the seeming “inconsistency between the rapid action of fentanyl, the extraordinarily high concentration levels, and the lengthy period of impaired breathing and reduced consciousness” that de Villers suffered. Indeed, Dr. Richeimer opines:

[C]ontamination of the specimens would explain the high blood levels better than ingestion or other administration of fentanyl to the decedent․[I]n attempting to determine if the cause of death was from fentanyl, it would be necessary to rule out the possibility that the samples were contaminated.

Richeimer Decl. at 3.

According to Dr. Richeimer, a toxicology lab could conclusively determine whether fentanyl was present in de Villers's body at the time of his death by testing his samples for metabolites of fentanyl. If de Villers's specimens contain metabolites of fentanyl, then fentanyl must have been present in his body at the time the specimens were taken. If no metabolites are present, then the specimens must have been contaminated after his death.

The California Supreme Court summarily denied Rossum's habeas petition in a one-sentence order on August 8, 2007. Two days later, Rossum filed a federal habeas petition under 28 U.S.C. § 2254. The magistrate judge to whom Rossum's petition was assigned issued a report and recommendation advising that the petition be denied. The district court adopted this recommendation and denied Rossum's petition on April 8, 2009. It concluded that her trial counsel's performance was not deficient, and that even if it was, she did not suffer any prejudice. It also denied Rossum's motion, made under Rule 6 of the Rules Governing Section 2254 Cases, for leave to test de Villers's autopsy specimens for metabolites of fentanyl. Rossum requested a certificate of appealability, which the district court granted on April 24, 2009.

DISCUSSION

I. Governing Legal Standards

We review a district court's denial of a petition for a writ of habeas corpus raising claims of ineffective assistance of counsel de novo. Reynoso v. Giurbino, 462 F.3d 1099, 1108-09 (9th Cir.2006). Any factual findings made by the district court are reviewed for clear error. Id.

Since Rossum filed her federal habeas petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the district court could not grant her habeas relief unless the California Supreme Court's decision denying her state habeas petition “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Reynoso, 462 F.3d at 1109. “When, as in the instant case, ‘no reasoned state court decision denying a habeas petition exists,’ this court must assume that the state court has decided all the issues and ‘perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.’ “ Reynoso, 462 F.3d at 1109 (quoting Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005) (per curiam)); see also Williams v. Taylor, 529 U.S. 362, 409 (2000) (“[A] federal habeas court making the ‘unreasonable application’ inquiry [under section 2254(d)(1) ] should ask whether the state court's application of clearly established federal law was objectively unreasonable.”).

The “clearly established federal law” that applies in this case is the framework articulated for analyzing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 390 (applying Strickland as the “clearly established federal law” that governed petitioner's ineffective-assistance claim). Under Strickland, Rossum must prove that (1) her counsel's performance was deficient, and (2) she suffered prejudice as a result. 466 U.S. at 687. To be deficient, an attorney's conduct must fall below an “objective standard of reasonableness” established by “prevailing professional norms.” Id. at 687-88. To demonstrate prejudice, Rossum does not need to show that her counsel's deficient performance more likely than not affected the outcome of the case. Instead, she must demonstrate only a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court has defined a “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Id.

II. The Merits of Rossum's Strickland Claim

A. Deficient Performance

A competent attorney would not have conceded that fentanyl caused de Villers's death without first having his autopsy specimens tested for metabolites of fentanyl; a determination to the contrary, particularly without an evidentiary hearing, would constitute an unreasonable application of Supreme Court law, unless counsel could show some strategic reason for his failure to conduct an elementary investigation.

Strickland recognized that an attorney's duty to provide reasonably effective assistance includes the “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U .S. at 691; see also ABA Standards for Criminal Justice: Prosecution Function and Defense Function 4-4.1(a) (3d ed. 1993) (“Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case․”). In Rossum's case, this investigatory duty extended to the cause of de Villers's death. Rossum's attorneys were presented with “tantalizing indications” that de Villers's autopsy specimens might have been contaminated: the medical and toxicological evidence raised serious questions as to whether fentanyl could have caused de Villers's death, an alternative cause of death was readily apparent, and there was a lapse in the chain of custody of de Villers's autopsy specimens. Stankewitz v. Woodford, 365 F.3d 706, 719-20 (9th Cir.2004).

The medical and toxicological evidence would have prompted a competent attorney to question Dr. Blackbourne's conclusion that de Villers died from an overdose of fentanyl. The fentanyl concentration levels measured by the three toxicology labs were widely disparate, suggesting, at the very least, that something might have been amiss with de Villers's autopsy specimens. The measurements were also extraordinarily high. Dr. Stanley, the prosecution's fentanyl expert, testified that at a concentration of 4 nanograms of fentanyl per milliliter of blood, about fifty percent of people would be breathing very slowly or not at all. The concentration of fentanyl that Pacific Toxicology measured in de Villers's blood was about fourteen times this level. Dr. Stanley also testified that in his decades of experience with anesthesiology, he had never seen fentanyl concentrations as high as those measured in de Villers's stomach. Given fentanyl's potency, a competent attorney would have wondered how the concentration of fentanyl in de Villers's blood, urine, and stomach contents could have reached such an extraordinary level before the drug killed him.7

Competent counsel would also have questioned how de Villers could have lingered for six to twelve hours before finally succumbing to fentanyl. As Dr. Richeimer's declaration indicates, if Rossum administered a single, large dose of fentanyl to de Villers, then he almost certainly would have died within a matter of minutes, not hours. If, instead, de Villers absorbed fentanyl gradually, his breathing would have stopped, and thus he would have perished long before the concentration of fentanyl in his blood reached the stratospheric levels measured by the toxicology labs.8 The inconsistency between fentanyl's potency and its relatively rapid onset, on the one hand, and de Villers's prolonged period of unconsciousness and his extraordinarily high toxicology results, on the other, would have prompted a competent attorney to investigate the possibility that de Villers's death was caused by another substance.

Rossum's lawyers would not have had to look far for an alternative explanation of de Villers's death. In addition to fentanyl, toxicologists also found clonazepam and oxycodone in de Villers's autopsy specimens. True, the concentration of clonazepam was in the high therapeutic range, and only a trace amount of oxycodone was found. But Dr. Stanley testified that clonazepam and oxycodone are synergistic, each multiplying the effect of the other when they are taken in combination. Thus, a concentration of clonazepam near the top of the therapeutic range could potentially have turned lethal when its effect was compounded by the presence of oxycodone. In addition, Dr. Stanley conceded that the concentration of clonazepam in de Villers's body might have fallen after his death due to postmortem redistribution. De Villers thus might have had a fatal concentration of clonazepam in his body at the time of his death, even though the postmortem testing of his autopsy specimens produced measurements within the therapeutic range.

The lapse in the chain of custody of de Villers's autopsy samples would also have led a competent attorney to investigate the possibility of contamination. Although concerns about a potential conflict of interest prompted the OME to send de Villers's specimens to an outside laboratory for testing, it nevertheless stored the samples at its lab for a period of thirty-six hours before they were transferred to the sheriff's office. During this time, anyone with a key to the OME had access to the specimens. Indeed, Robertson claimed to have opened at least one of the samples while they were housed at the OME. Since the OME stores fentanyl at its lab, contamination-whether intentional or unintentional-could have occurred.

While the district court concluded that the possibility of intentional contamination was speculative, the record indicates otherwise. Although the potential motivations for such an act are manifold, two are particularly salient. First, the samples could have been contaminated by a coworker upset by the preferential treatment Rossum seemed to receive from Robertson. Second, an OME employee seeking to dethrone Robertson from his position as laboratory manager could have contaminated the specimens to cast suspicion on both him and Rossum.9

The appellee rejoins that if one of Rossum's coworkers had decided to frame her or Robertson, he would not have used fentanyl to do so because he would have known that toxicology labs rarely test for fentanyl. The record belies this contention. As an initial matter, the appellee's argument does not account for the possibility of unintentional contamination. It also fails to recognize that OME employees could well have known that de Villers's specimens would be sent to an outside lab, and the first lab selected to analyze de Villers's samples, Pacific Toxicology, did test for fentanyl as part of its standard “drugs of abuse” screen. Finally, the argument ignores the manner in which toxicology testing is ordinarily done. Dr. Blackbourne testified that if a toxicology lab's initial testing fails to disclose a cause of death, further tests are often conducted to determine if less common substances are present in the decedent's body. Even if fentanyl were not initially discovered by toxicologists, then, it might have been found in later tests.

The appellee also contends that Rossum has failed to show that her coworkers held sufficient animosity toward her to motivate them to take the drastic step of framing her for murder. Thus, the appellee argues, Rossum's attorneys could reasonably have decided not to waste their time and resources pursuing a theory of intentional contamination. Again, this argument fails to consider the possibility of unintentional contamination. More importantly, however, it ignores the fact that a contamination defense was the best-and perhaps the only viable-defense available to Rossum. Cf. Gomez v. Beto, 462 F.2d 596, 597 (5th Cir.1972) (“When a defense counsel fails to investigate his client's only possible defense, although requested to do so by him; and fails to subpoena witnesses in support of the defense, it can hardly be said that the defendant has had the effective assistance of counsel.”). A competent attorney would have been extremely reluctant to concede that fentanyl caused de Villers's death because the concession would essentially doom the defense's theory that de Villers committed suicide.

While there were significant holes in the prosecution's theory that Rossum murdered de Villers with fentanyl, the defense's suicide-by-fentanyl theory was even more implausible. The medical and toxicological evidence suggested that de Villers could only have died from an overdose of fentanyl if he was administered the drug on multiple occasions throughout the day. If de Villers self-administered a large, single dose of fentanyl, then he would have died too rapidly for the bronchopneumonia to develop in his lungs and for the large quantity of urine to collect in his bladder. But de Villers could not have voluntarily taken multiple doses of fentanyl over the course of the day because in the last hours of his life, he was too comatose even to breathe properly, much less self-administer fentanyl.

A competent attorney would have recognized the defects in a defense based on the theory that de Villers committed suicide by taking fentanyl and thus would have thoroughly investigated the possibility of contamination before conceding that fentanyl caused de Villers's death. Dr. Richeimer's declaration indicates that a toxicology lab could have definitively determined whether de Villers's samples were contaminated by testing them for the presence of metabolites of fentanyl.10

Although the district court and the appellee note that the absence of fentanyl metabolites would not have exonerated Rossum because she could have killed de Villers with another drug, it seems highly unlikely that a jury would have convicted Rossum if the defense were able to conclusively contradict the prosecution's theory that Rossum murdered de Villers with fentanyl and show that de Villers's autopsy specimens were contaminated, either intentionally or through inadvertence. If, on the other hand, fentanyl metabolites were found, the defense would have suffered no harm. Even if the prosecution were somehow able to discover the test results, but see Cal.Penal Code § 1054.3(a) (West 2002) (requiring the defense to disclose the results of scientific tests to the prosecution only if the defense intends to introduce the results as evidence at trial), the defense would have been left to pursue the very theory that Rossum's attorneys argued at trial-that de Villers committed suicide by taking fentanyl.

This leaves only the appellee's argument that Rossum's attorneys could reasonably have decided not to pursue a contamination theory so as not to contradict testimony that Rossum provided at trial. However, this could not have been the basis for their decision not to pursue a contamination theory, as they had an obligation to investigate such a theory before the trial, when there was no testimony to contradict. In any event, this argument misconceives the relevance of a single question and answer made during Rossum's cross-examination:

Q. So it is your testimony, then, that Greg de Villers voluntarily took fentanyl, clonazepam, and oxycodone, correct?

A. As far as his death, yes.

Trial Tr. vol. 21, 2569.

Rossum's answer amounted to no more than a restatement of her defense: de Villers committed suicide by voluntarily taking whatever drugs were found in his system. Rossum was not averring that she had firsthand knowledge that de Villers took fentanyl, along with other drugs. In fact, her entire defense was founded on the premise that she did not have such firsthand knowledge because de Villers, not she, administered whatever drugs caused his demise.

Because the medical and toxicological evidence raised serious questions about de Villers's purported cause of death, because an alternative cause of death was readily apparent, and because there was a lapse in the chain of custody of de Villers's specimens, we conclude that a competent attorney would not have pursued a suicide-by-fentanyl theory, with all its defects, without first having de Villers's specimens tested for the presence of fentanyl metabolites.11 On this record, Strickland's first prong therefore appears to be satisfied.12

B. Prejudice

To prevail in her ineffective assistance claim Rossum must also demonstrate that she was prejudiced by her counsel's deficient performance. We are unable to determine from the record before us whether Rossum was prejudiced by her attorneys' deficient investigation, as that conclusion must ultimately rest on whether or not de Villers's autopsy samples prove to contain fentanyl metabolites.

As noted above, the appellee argues that even if de Villers's autopsy specimens do not contain metabolites of fentanyl, such a finding would not exonerate Rossum because she could have murdered de Villers by other means. This argument ignores both the weaknesses of the prosecution's case against Rossum and the impact that evidence of contamination would likely have had on the jury.

The prosecution's case was based entirely on circumstantial evidence. It primarily relied on the inferences that could be drawn from (1) the medical and toxicological evidence; (2) the lack of other plausible suspects; (3) Rossum's apparent motive to kill de Villers to stop him from disclosing her affair and drug use; and (4) her access to the drugs found in his body.

If the defense had tested de Villers's autopsy specimens and found no fentanyl metabolites, it could have definitively refuted the prosecution's theory of the case-that Rossum murdered de Villers with an overdose of fentanyl. And, given the evidence, the prosecution would have had an extremely difficult time convincing the jury that Rossum instead committed the murder with different drugs. At trial, the prosecution downplayed the significance of the oxycodone and clonazepam found in de Villers's specimens, noting that the concentrations of these drugs were not at lethal levels. Furthermore, if jurors learned that de Villers's autopsy samples had been contaminated, either intentionally or by accident, they could well have viewed all of the prosecution's evidence more skeptically.

Thus, whether or not Rossum was prejudiced by her counsel's deficient performance is a question that ultimately turns on whether fentanyl metabolites are present in de Villers's autopsy samples, a question that cannot be answered based upon the current record.

III. Remand for Further Proceedings

We thus remand for the district court to hold an evidentiary hearing. Rossum is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2) because she did not “fail[ ] to develop the factual basis of [her] claim” before the California state courts. Although Rossum requested an evidentiary hearing before the California Supreme Court, the court summarily denied her habeas petition without ordering such a hearing. As we have previously held, a district court evidentiary hearing is not barred if a habeas petitioner made “a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court, [by] at a minimum seek[ing] an evidentiary hearing in state court in the manner prescribed by state law.” West v. Ryan, 608 F.3d 477, 484-85 (9th Cir.2010).

A habeas petitioner not barred from receiving an evidentiary hearing by section 2254(e)(2) is entitled to such a hearing if she (1) alleges facts that, if proven, would entitle her to relief, and (2) shows that she did not receive a full and fair hearing in state court. Alberni v. McDaniel, 458 F.3d 860, 873 (9th Cir.2006); see also Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir.2005). If, as Rossum alleges, de Villers's specimens were contaminated and her attorneys failed to investigate that possibility, she would in all probability be entitled to habeas relief on her claim of ineffective assistance of counsel. And as explained above, the California Supreme Court did not afford Rossum a full and fair hearing on this contention since it summarily denied her state habeas petition. As a result, Rossum is entitled to an evidentiary hearing on her allegations of ineffective assistance of counsel and, in particular, her claim that she was prejudiced by her attorneys' failure to conduct an investigation as to whether fentanyl was the cause of de Villers's death before conceding the critical point to the prosecution.

Under our holding in Jones v. Wood, 114 F.3d 1002 (9th Cir.1997), in conducting this evidentiary hearing the district judge is obligated to allow Rossum to test de Villers's specimens for metabolites of fentanyl. The habeas petitioner in Jones was convicted of murdering his wife. Id. at 1004. He contended that his trial counsel performed deficiently by failing to order forensic testing that might have proved that the blood found on the clothing he was wearing on the night of the murder came from a cut on his own hand, rather than from his wife as the prosecution contended. Id. at 1006-07. We held that the district court abused its discretion by denying the petitioner's request to test the blood on the clothing to determine whether it was his or his wife's. Id. at 1009. Here, as in Jones, “discovery is essential for [Rossum] to develop fully [her] ineffective assistance of counsel claim” because the testing she seeks “may establish the prejudice required to make out such a claim.” Id.

CONCLUSION

For the foregoing reasons, we conclude that Rossum is entitled to an evidentiary hearing on her claim that her trial counsel rendered ineffective assistance under Strickland. Accordingly, we REVERSE the district court's denial of a writ of habeas corpus and REMAND for further proceedings consistent with this opinion.

FOOTNOTES

1.  The facts here are drawn primarily from the California Court of Appeal's decision affirming Rossum's conviction. People v. Rossum, No. D041343, 2005 WL 1385312, at *1-*3 (Cal. Ct.App. June 13, 2005), supplemented by facts deriving from the record on file with this Court.

2.  The parties disputed the source of the rose at trial. The prosecution alleged that Rossum bought the rose during her trip to the grocery store on Monday. Although Rossum admitted to purchasing a rose from the grocery store, she claimed that it had yellow petals and that she gave the rose to Robertson when they met later Monday afternoon. The defense suggested that the rose petals found around de Villers's body came from the sole remaining rose of a bouquet that de Villers had given to Rossum for her birthday.

3.  Most individuals would feel a need to empty their bladders when 150 milliliters of urine had accumulated. At 400 milliliters, the feeling would be urgent.

4.  No evidence was presented at trial that de Villers was inured to the effects of fentanyl through the regular abuse of opiates. (See testimony from Rossum that the only drug de Villers used was marijuana).

5.  The OME impounds drugs discovered at the scene of an individual's death and maintains an inventory of “drug standards”-quantities of particular drugs used as reference material during testing procedures.

6.  As we have previously explained:In California, the state supreme court, intermediate courts of appeal and superior courts all have original habeas corpus jurisdiction․ If the court of appeal denies [habeas] relief, the petitioner may seek review in the California Supreme Court by way of a petition for review, or may instead file an original habeas petition in the supreme court.Redd v. McGrath, 343 F.3d 1077, 1079 n.2 (9th Cir.2003).

7.  There is some evidence suggesting that fentanyl has a unique property: unlike most drugs, concentrations of fentanyl may increase after death. Dr. Stanley, however, testified that the concentration of fentanyl measured after death would likely be no more than about twenty percent higher than the concentration before death. Thus, even if one takes into account the possibility that the concentration of fentanyl in de Villers's bodily fluids rose slightly after his death, the levels measured by the toxicology labs were still exceptionally high.

8.  Dr. Stanley did testify that de Villers's blood levels potentially could have been obtained through the application of multiple transdermal patches. But his opinion on this issue was very tentative. He admitted that he was “not sure” that such levels could be achieved because he had never placed that many patches on a patient.

9.  Robertson appears to have had a special interest and expertise in fentanyl. Russ Lowe testified that he discovered approximately thirty-seven articles on fentanyl while cleaning out Robertson's office after his departure from the OME. If Robertson's interest in fentanyl was widely known, then contaminating de Villers's samples with fentanyl might have seemed like an effective way of implicating Robertson in de Villers's death.

10.  Would a competent attorney have realized that de Villers's samples could be tested for contamination by analyzing them for the presence of fentanyl metabolites? The appellee argues not. At oral argument, the appellee directed our attention to the cross-examination of toxicologist Michael Henson. Rossum's attorney asked Henson, “Do you have any way of knowing or testing to determine if any [of de Villers's] samples ․ has been tampered with or spiked by anybody?” Henson answered, “No.” ER 305. If a trained toxicologist did not know that contamination could be detected through a test for metabolites, the appellee asks, how could an attorney, untrained in forensic science, be expected to have such knowledge?We could dismiss this argument, which the appellee raised for the first time at oral argument, as waived. See Butler v. Curry, 528 F.3d 624, 642 (9th Cir.2008). Nevertheless, we reject it on its merits. We refuse to accord definitive weight to an answer given by a single prosecution witness during cross-examination. In any case, defense attorneys are obligated to pursue lines of investigation that hold out the promise of proving their clients' innocence prior to deciding on a trial strategy. See Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir.1999). According to Dr. Richeimer, many toxicology labs regularly test samples for metabolites. Thus, at least on the record before us, it seems likely that if Rossum's attorneys had conducted an adequate pretrial investigation, they would have discovered that de Villers's specimens could be tested for contamination by analyzing them for the presence of fentanyl metabolites. Indeed, if that were the case, there would have been no need for them to ask the question on which the appellee's argument is founded. They would have known that a test for contamination is available-the test for metabolites discussed in Dr. Richeimer's declaration.

11.  Pointing to Dr. Richeimer's declaration that many toxicology labs commonly run tests for metabolites, the appellee speculates that de Villers's autopsy specimens may already have been tested for the presence of fentanyl metabolites. If metabolites of fentanyl were found by any of the toxicology labs that analyzed de Villers's specimens, the appellee bore the burden of presenting this information to the district court. It would be highly improper for us to assume, based merely on the appellee's unsupported speculation, that de Villers's specimens were tested for the presence of fentanyl metabolites and that such tests were unfavorable to Rossum.

12.  We do not prohibit the state, however, from calling defense counsel to testify, at the evidentiary hearing, should counsel choose to assert that his failure to conduct a reasonable investigation regarding metabolites was the result of some thus far undisclosed reason, strategic or other.

GERTNER, District Judge.

 

 

 
 
 
 
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