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9th Circuit Orders New Hearing in Fentanyl Murder Case

It was a San Diego murder case involving a meth-addicted county toxicologist, her secret affair with her boss and a rose petal-covered crime scene evocative of the iconic "American Beauty." Now it's an appeal hinging on the results of new lab tests.

Kristin Rossum, who worked in the San Diego County Medical Examiner's office when prosecutors alleged she poisoned her husband to death in 2000, has a new shot at habeas corpus relief after the 9th U.S. Circuit Court of Appeals ruled Thursday that her trial counsel was unconstitutionally ineffective.

A three-judge panel ordered U.S. District Judge Janis Sammartino to hold an evidentiary hearing that is to include lab tests that should either confirm or dispel the prosecution's theory that Gregory de Villers died from an overdose of the powerful opiate fentanyl.

De Villers died just days after confronting his wife about her relapse into methamphetamine use and her affair. His body was found covered in rose petals and his death was initially ruled a suicide. The subsequent murder prosecution made national headlines.

The 9th Circuit on Thursday chided defense counsel for failing to do an "elementary" investigation into lab samples and for using an "implausible" suicide-by-fentanyl defense.

The new test will determine whether the fentanyl found in samples from de Villers' body was introduced after his death, which the court noted could be a result of either lab contamination or a conspiracy to implicate Rossum in his murder.

The samples were stored more than a day at the county lab where Rossum worked, according to the 9th Circuit's opinion. At the time, her co-workers resented her for her affair with her boss, which they thought resulted in preferential treatment. That situation, and the possibility that the fentanyl could have been introduced to the samples by accident, could have provided Rossum with a different defense, the 9th Circuit concluded.

Testing also found other drugs in de Villers' system, which the court noted could have caused his death in either a homicide or 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' 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," wrote Judge Nancy Gertner, a Massachusetts federal judge sitting by designation. Ninth Circuit Judges Dorothy Nelson and Stephen Reinhardt concurred.

Because the court couldn't determine whether Rossum is entitled to habeas relief without the new lab testing, the case, Rossum v. Patrick, 09-55666, was sent back to Sammartino for further proceedings.

Rossum is serving a life sentence without possibility of parole. She has exhausted her state appeals and post-conviction remedies.

The 9th Circuit did not identify Rossum's trial attorneys by name, but according to press reports at the time of the trial they were Alexander Loebig and Victor Eriksen of the San Diego public defender’s office.

Christensen Argues That Misconduct Tainted Wiretapping Conviction

Attorney Terry Christensen and five co-defendants caught up in the scandal surrounding Hollywood celebrity sleuth Anthony Pellicano argue on appeal that their wiretapping convictions were tainted by prosecutorial and juror misconduct.

Christensen, former managing partner of what is now Glaser, Weil, Fink, Jacobs, Howard & Shapiro in Los Angeles, was sentenced in 2008 to three years in federal prison after a jury found that he paid Pellicano more than $100,000 to wiretap the ex-wife of his client, billionaire Kirk Kerkorian.

In a joint brief that he and his co-defendants filed with the 9th U.S. Circuit Court of Appeals, Christensen argued that one of the jurors was improperly dismissed during deliberations after he raised doubts about the merits of the government's case against Christensen.

At that time, U.S. District Judge Dale Fischer said that she removed the juror, referred to in court papers as Juror No. 7, because he had refused to deliberate and had questioned the validity of the government's case.

"The record does not show that Juror No. 7 was unwilling or unable to deliberate or follow the law -- because the court never asked that question," wrote Christensen's lawyers, Dan Marmalefsky and Seth M. Hufstedler, both Los Angeles partners with Morrison & Foerster.

They wrote that the rest of the jurors, particularly the foreman, were biased against Juror No. 7, a native Russian. Confusion about Juror No. 7's statements boils down to simple misunderstanding, they said. "The court's failure to inquire deeper as to the juror's understanding -- particularly for a juror who speaks English as a second language -- does not provide sufficient grounds for dismissing him during deliberations."

Pellicano was convicted in two separate trials on 78 counts relating to wiretapping. During the second trial, involving Christensen, the jury heard 34 recorded conversations. In that trial, prosecutors charged Christensen and Pellicano with conspiracy and with intercepting wire communications.

During Christensen's sentencing hearing, Fischer said the lawyer's "shocking and outrageous" conduct "marred the legal profession" and "showed disrespect for the system of the law on a grand scale."

According to court records, Kerkorian -- at the request of his family law attorney, Dennis Wasser of Los Angeles-based Wasser, Cooperman & Carter -- hired Christensen in 2002 to represent him in his child support case against his ex-wife, Lisa Bonder Kerkorian. Kerkorian had been paying his ex-wife child support payments of $50,000 per month. Two years later, she was asking for $320,000 per month.

Christensen retained Pellicano to investigate the paternity of the child. The real father turned out to be Steve Bing, the real estate developer and movie producer.

On appeal, Christensen's lawyers also raised a discovery violation involving a witness's statement in a presentencing report that the government didn't disclose to defense attorneys until years following the trial.

"The presentence report, if it had been disclosed by the government, would have provided powerful impeachment evidence," the lawyers argued, because the witness's statement would have supported Christensen's claim that Pellicano lacked the ability to wiretap Bonder Kerkorian in 2002.

That same alleged discovery violation was raised by four other defendants in the case: Mark Arneson, a former Los Angeles Police Department sergeant; Rayford Turner, a former field technician for SBC Inc., now AT&T Inc.; Kevin Kachikian, a computer programmer whose software is alleged to have helped Pellicano tap wires; and Abner Nicherie, a client of Pellicano's. All four were convicted during the first trial.

Lawyers for those defendants argued in Thursday's brief that their clients had been prejudiced because one of the prosecutors made an off-hand remark about his personal opinion of Arneson's guilt that was overheard by jurors. Later, one of the jurors lied to the court about overhearing the comment and slept during portions of the trial.

Additionally, prosecutors wrongfully introduced evidence that Pellicano's wiretapping led to the acquittal of defendants accused of serious crimes like rape and murder, according to the brief.