Once Kristin Rossum's federal appeal was rejected by the U.S. Supreme Court last year, I figured that the attractive toxicologist had finally run out of options.
Since 2002, Rossum has been serving a life sentence without parole at Chowchilla state prison after being convicted of poisoning her husband with fentanyl, a powerful and fast-acting narcotic painkiller 100 times stronger than morphine, then staging a suicide scene by sprinkling red rose petals over his body here in San Diego.
But I was wrong. The case is heating up again. I was woken up this week by a national morning show producer, asking if a crew could come to my house in a couple of hours to interview me -- the author of the authoritative book on the case, Poisoned Love -- about the latest developments, which I promptly researched.
Turns out that Rossusm has yet another new attorney, who submitted a motion in June. It is essentially based on the same issue and arguments as Rossum's previous state and federal "ineffective counsel" appeals, which seemed to have run their course -- only this time, Rossum is citing a state law that allows new discovery or reconstruction of a death penalty or LWOP case file. The motion was denied without prejudice this week, which means the door is still open.
Attorney Elizabeth Missakian -- I've lost count how many attorneys Rossum has had in the past 13 years since her husband, Gregory de Villers, was killed -- ultimately hopes to file a writ of habeas corpus in state court to get her client a new trial.
Not knowing all these legal subtleties, I was surprised to get my first-ever call from the morning show 11 years after Rossum's trial, and long after I'd thought her appeals were exhausted. Then, a national prime time crime show producer called, and she, too, wanted to know, is there a real story here?
After talking to Missakian and prosecutor Gary Schons and reading their court briefs, I say yes, because the case has new life, and, I believe, a potentially precedent-setting forensic exercise could ensue. But, by the same token, Rossum might not even get that far.
The challenge now for Rossum's attorney is to find an expert, a study or some kind of proof that 13-year-old autopsy specimens have been properly preserved such that meaningful and scientifically valid results can be generated by testing the samples for fentanyl metabolites, which the body produces as it processes a drug. Her hope is to prove that the specimens were purposely or inadvertently contaminated after his death.
Prosecutors say Rossum poisoned de Villers after stealing the fentanyl from the San Diego County Medical Examiner's toxicology lab, where she and her married boss-lover both worked and from which quantities of fentanyl were missing. Rossum was also accused of stealing methamphetamine from the lab, and smoking it with the glass pipe found there, laden with her DNA.
At a hearing this week, Judge John Thompson sided with the prosecution, saying Missakian has yet to prove that the autopsy specimens have not degraded to the point where testing would be fruitless. Thompson left the door open for Missakian to file her motion again if she can find evidence proving that she can produce meaningful test results.
If and when she finds that evidence, Missakian said, "a new motion will be filed."
Rossum's appellate attorneys have argued that showing fentanyl did not kill de Villers would undermine the prosecution's entire case and negate the jury verdict as well. Missakian is trying to prove that Rossum's trial attorneys provided her with inadequate counsel by not requesting this testing and questioning the cause of death back in 2002.
The problem, as prosecutor Gary Schons sees it, is that he couldn't find any study showing that this type of testing has ever been done or could be done by any reliable forensic outfit.
Missakian, on the other hand, says she "doesn't know if it hasn't been done before," but she is going to find out. The burden is on her to prove that it can be done.
Shons counters that even if the testing was done now, and metabolites were not found, that still wouldn't prove anything.
"It doesn't prove [the metabolites] weren't there before," he said. It also doesn't prove that Rossum didn't kill her husband with one or both of the other drugs found in his system -- Clonazepam and Oxycodone. If someone wants to see if such testing can really produce meaningful results, Schons said, they should apply these unlikely forensics to a different case where they could make a difference.
"We're down the rabbit hole," he said. "So why bother?"
Rossum's case made international news when I started covering the case back in 2001 for The San Diego Union-Tribune. It became a pretty high-profile case -- even making the pages of Cosmopolitan's international editions -- because she was a pretty 24-year-old from a good family, educated and talented, with everything going for her. But she was also a meth addict, and shortly after de Villers died, she was fired for using meth.
Her boss-lover, the Australian hunk Michael Robertson, was also fired for not reporting her drug use. Although the prosecution labeled him an "unindicted co-conspirator" and he is still technically under investigation in this case, he is back in Australia, and has never been charged.
Rossum had new hope in 2010, when a three-judge panel of the 9th Circuit Court of Appeals ruled that the retesting of the autopsy specimens should be allowed. However, the court reversed itself after the California Attorney General's Office argued against it, citing a U.S. Supreme Court precedent. Missakian claims this reversal was based on a technical point, not on the appeal's merits.
I say, why not just test the specimens? What could that hurt? If the metabolites are found, then the case on this point would be closed, and if they're not present, then who knows where that could lead. It could end this ongoing series of court filings on this particular point, which has been going on since 2006, or it could, theoretically, trigger a new trial, which is a long shot, but still technically possible.
I'm also guessing that Rossum's trial attorneys -- who never tested the specimens for these metabolites because no one at the time questioned the medical examiner's finding that acute fentanyl intoxication was the true cause of death -- would like a chance to clear their names as well.
New York Times best-selling author Caitlin Rother has written or co-authored nine books, including POISONED LOVE and LOST GIRLS, and the upcoming I'LL TAKE CARE OF YOU, to be released in January 2014.
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