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.
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,
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
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
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.
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
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
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
Prosecutors say Kristin staged a suicide scene
with rose petals, reminiscent of one of her favorite movies,
But was it suicide - or was Greg murdered by
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
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,"
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
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
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
"He was my angel because he saved me," says
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
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
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
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
The family agreed to the reduction to avoid
“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
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
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
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
Among the narcotics found in his system was
fentanyl, a synthetic opiate 100 times more powerful than
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
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
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
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
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".
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
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
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
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
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
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
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
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
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
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
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
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.
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.
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
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
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
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
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.
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
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,
Deborah PATRICK, Warden, & Edmund G. Brown Jr., Attorney General
of the State of California, Respondents-Appellees.
Argued and Submitted April 6, 2010. -- September 23, 2010
Before DOROTHY W. NELSON and
STEPHEN REINHARDT, Circuit Judges, and NANCY GERTNER, District
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
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
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
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
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
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
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
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
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
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
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
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.
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.”
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
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
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
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
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,
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
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
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
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.
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
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
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.
individuals would feel a need to empty their bladders when 150
milliliters of urine had accumulated. At 400 milliliters, the
feeling would be urgent.
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
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
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).
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.
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
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.
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.
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.
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.