Rossum v. Patrick

622 F.3d 1262, 2010 U.S. App. LEXIS 19811, 2010 WL 3704188
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 23, 2010
DocketNo. 09-55666
StatusPublished
Cited by4 cases

This text of 622 F.3d 1262 (Rossum v. Patrick) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rossum v. Patrick, 622 F.3d 1262, 2010 U.S. App. LEXIS 19811, 2010 WL 3704188 (9th Cir. 2010).

Opinion

OPINION

GERTNER, District Judge:

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

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

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

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

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

Without first having such tests conducted, Rossum’s attorneys accepted the prosecution’s theory that de Villers died from an overdose of fentanyl but claimed that he committed suicide. The medical and toxicological evidence, however, suggested that if fentanyl caused de Villers’s death, it must have been administered to him multiple times. Since de Villers was too comatose to self-administer fentanyl in the hours immediately preceding his death, the [1265]*1265defense’s suicide-by-fentanyl theory was highly implausible. And the choice of this approach is particularly significant since there was an alternative cause of death consistent with the evidence and potentially consistent with suicide.

In light of the anomalous medical and toxicological evidence, the ready availability of an alternative cause of death, the lapse in the chain of custody of de Villers’s autopsy specimens, and the failure of Rossum’s attorneys to have a test conducted that could have conclusively contradicted the prosecution’s theory of the case, she has made a strong showing that her lawyers’ performance was deficient.

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

BACKGROUND

I. Factual Background1

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

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

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

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

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

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

Rossum went to work at 8:00 that morning; coworkers saw her crying in Robertson’s office an hour later. The manager of her apartment complex observed her running into her apartment at 12:10 p.m. At 12:41 p.m., Rossum purchased several items at a grocery store. According to Rossum, she returned to her apartment and ate lunch with de Villers. She testified that when she asked him why he had been so “out of it” that morning, he told her that he had taken some of her oxyco[1266]*1266done and clonazepam, which she had obtained years earlier when she was trying to end her methamphetamine addiction. She testified that de Villers went back to bed after lunch.

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

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

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

Dr.

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Related

Rossum v. Patrick
659 F.3d 722 (Ninth Circuit, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
622 F.3d 1262, 2010 U.S. App. LEXIS 19811, 2010 WL 3704188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rossum-v-patrick-ca9-2010.