Kristin Rossum was a toxicologist in the San Diego County Office of the Medical Examiner, the agency responsible for establishing how people in the county died, when her husband died in San Diego on November 6, 2000. The office she worked for performed the autopsy. Within weeks the death had become a homicide investigation, and within a year she was charged with murder. On November 12, 2002, a San Diego County jury found her guilty of first degree murder and found true a special circumstance allegation under the California Penal Code. In December 2002 she was sentenced to life in prison without the possibility of parole.
She has always denied killing him. At trial her defense was that her husband had taken his own life. The verdict survived a direct appeal and two rounds of state habeas proceedings, and then came close to being reopened in federal court: in September 2010 a panel of the United States Court of Appeals for the Ninth Circuit held that her trial lawyers had likely failed her and ordered a hearing at which the autopsy specimens could be tested again. A year later, after the Supreme Court of the United States had decided two cases that narrowed federal review of state convictions, the same panel withdrew that opinion and affirmed the denial of her petition. The 2011 ruling left her conviction in place.
In early 1995 she was 18 and living in Chula Vista, south of San Diego. That year she met Gregory de Villers at the border crossing between San Diego and Tijuana. The two became a couple quickly and were soon living together.
The courts found that she had struggled with drug addiction from her high school years, and that he helped her stop. She went back to college. In October 1996 they became engaged, and in June 1999 they married. She graduated summa cum laude from San Diego State University with a degree in chemistry.
He is best known through the people who knew him. At trial, his friends, relatives and colleagues testified, one after another, that he was not someone who would have taken his own life. They described a man who handled stress well, who was not given to emotional outbursts, and who in the weeks before his death had been making plans for his future. The marriage lasted about 17 months.
While she was still in college, in 1997, Rossum took a job as a student worker at the San Diego County Office of the Medical Examiner. In March 2000 the office hired her as a toxicologist, a scientist who examines fluids taken from the dead to determine what substances were present.
That spring a new forensic laboratory manager arrived at the office and became her supervisor. Both were married. At trial she admitted that a sexual relationship between them began in June 2000. Coworkers suspected the affair. The supervisor denied it three times when the office's operations administrator asked him, and denied it to another toxicologist as well.
In October 2000, the courts found, the addiction returned. On Thursday, November 2, 2000, her husband confronted her. He told her he suspected both the relapse and the affair, demanded that she quit her job at the medical examiner's office, and said that if she refused he would tell her employers about both. The prosecution's case rested on that threat. It argued that she killed him to stop him from carrying it out.
Her husband died on Monday, November 6, 2000, in San Diego. The next day the county medical examiner performed the autopsy. Because the dead man was the husband of a member of the office's own staff, the operations administrator arranged for the toxicology work to be done by an outside agency rather than in the office's own laboratory, the first time he had done so.
The investigation turned toward her almost at once. On November 8, a longtime employee of the medical examiner's office called the police to report the affair between the toxicologist and her supervisor; the prosecution later treated that call as a turning point.
The San Diego Police Department investigated the death as a possible homicide. The supervisor, an Australian national, left the medical examiner's office and returned to Australia before she was arrested. He denied any part in the death. Prosecutors at trial described him as an unindicted co-conspirator, but he was never charged, and he did not testify.
She was arrested and charged with murder in 2001. On November 6, 2001, a year to the day after the death, the San Diego County District Attorney's Office filed an information in San Diego County Superior Court, case number SCD 160961, charging her with the murder of her husband in violation of Penal Code section 187(a). The information also alleged a special circumstance: that she "intentionally killed" him "by the administration of poison," within the meaning of Penal Code section 190.2(a)(19). Prosecutors decided not to seek the death penalty.
The trial began in San Diego County Superior Court in October 2002 and ran for several weeks. The prosecution's case was entirely circumstantial, as the federal appeals court later stressed. It rested on the autopsy findings and the toxicology results, on expert medical testimony, on her access to that drug through her work, on the absence of any other suspect, and on motive: the threat, made four days before the death, to expose her drug use and the affair to her employer.
Her lawyers did not dispute the cause of death. They conceded the cause of death the prosecution put forward, and argued instead that he had taken it himself, despondent over the state of the marriage. She testified in her own defense for more than eight hours, and she held to that account.
Against that, the jury heard the witnesses who had known him and who said he was not suicidal, and an expert who testified for the prosecution about the effects of long-term drug addiction on judgment and decision-making. The prosecution told the jury that the evidence of her drug use was offered to show motive, and not simply to blacken her character.
Closing arguments ran for about seven and a half hours for the prosecution and under two hours for the defense. The jury deliberated for about eight hours over two days.
On Tuesday, November 12, 2002, the jury found her guilty of first degree murder and found the special circumstance allegation true. The verdict fell on her husband's birthday. She appeared to break down as the jurors left the courtroom. The jurors declined to speak to reporters.
In December 2002 the Superior Court sentenced her to life in prison without the possibility of parole.
She appealed to the California Court of Appeal, Fourth Appellate District, Division One, and at the same time filed a petition for a writ of habeas corpus in that court. On June 13, 2005, the Court of Appeal affirmed her conviction and sentence in an unpublished opinion, and it denied the habeas petition in a separate unpublished opinion. The one change it made was to strike a restitution fine, because the fine violated Penal Code section 1202.45. She then petitioned the California Supreme Court for review, and that court denied review without citation of authority.
With new counsel, she filed a habeas petition in the California Supreme Court on December 15, 2006. It raised, for the first time, a claim that her trial lawyers had been constitutionally ineffective, and it was supported by the sworn declaration of a physician who directed a pain management program at the University of Southern California's Keck School of Medicine. He argued that the medical evidence about the timing of the death did not fit comfortably with the toxicology results, and that contamination of the specimens after they were taken at autopsy was a more compelling explanation of those results. Further testing of the specimens, he said, could settle the question. The petition asked for an evidentiary hearing. On August 8, 2007, the California Supreme Court denied it in a one-sentence order, without issuing an order to show cause and without a hearing.
Two days later, on August 10, 2007, she filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of California under 28 U.S.C. section 2254. The petition set out a series of failures by her trial lawyers. They had conceded the cause of death without investigating an alternative. They had not investigated whether the autopsy specimens were contaminated. They had not objected to evidence of her drug use before and after the death, to comments by the prosecutor in opening and closing argument, or to the testimony of the prosecution's addiction expert. They had not asked for an instruction limiting how the jury could use the drug evidence. And the combined effect of those errors, she argued, had denied her the effective assistance of counsel guaranteed by the Sixth Amendment. She also asked the court for an evidentiary hearing and for an order allowing the specimens to be tested.
The state answered in November 2007. On May 16, 2008, the United States magistrate judge assigned to the case issued a report recommending that the petition, the request for a hearing and the request for discovery all be denied. The report found no error by her lawyers and no prejudice from any alleged error, and it described the evidence of her guilt as strong. On the limiting instruction, it accepted the state court's reasoning that a competent lawyer might well have decided that such an instruction would only have highlighted for the jury how the drug evidence bore on motive.
On April 8, 2009, the district judge adopted the recommendation, denied the petition and denied her motion to have the specimens tested. On April 24, 2009, the district judge granted a certificate of appealability on the issues raised in the first two grounds of the petition, the concession on cause of death and the failure to investigate contamination.
The appeal, Rossum v. Patrick, No. 09-55666, was argued before a three-judge panel of the Ninth Circuit in Pasadena on April 6, 2010. The panel was made up of two circuit judges and a district judge sitting by designation, who wrote the opinion.
On September 23, 2010, the panel reversed the denial of her petition. It held that her trial lawyers' performance had likely been deficient. A competent attorney, the opinion said, "would not have conceded" the cause of death "without first having his autopsy specimens tested." It noted that the prosecution's case "was based entirely on circumstantial evidence," and it found the medical evidence equivocal. The specimens had not been kept under secure conditions for a period after the autopsy, and the court wrote that "the potential for contamination of the samples was not remote."
The panel could not decide on the existing record whether those failures had changed the outcome of the trial. That question, it held, depended on what further testing of the specimens would show. Because the California Supreme Court had denied her claim without a hearing, the panel found that she had not been given a full and fair hearing in the state courts, and that federal law therefore did not bar one in federal court. It sent the case back to the district court in San Diego for an evidentiary hearing on her claim of ineffective assistance, focused on prejudice, and directed that court to allow the specimens to be tested. If the specimens proved to have been contaminated, the opinion said, she "would in all probability be entitled to habeas relief."
The state asked the panel to rehear the case. While that request was pending, the Supreme Court of the United States decided two cases that bore directly on it, both on appeal from the Ninth Circuit.
In Harrington v. Richter, decided January 19, 2011, the Supreme Court held that the federal habeas statute's deferential standard of review applies even when a state court denies a claim without giving any reasons, and that relief is barred so long as fairminded jurists could disagree about whether the state court's decision was correct. It described review of an ineffective-assistance claim under that statute as doubly deferential. In Cullen v. Pinholster, decided April 4, 2011, the Court held that federal review of a claim the state court decided on the merits is limited to the record that was before the state court.
Both rulings went to the heart of her case. The California Supreme Court had denied her habeas petition in a single sentence, and the hearing the panel had ordered was meant to develop evidence that had never been before any state court.
On September 13, 2011, the panel granted rehearing, withdrew its 2010 opinion and filed a short per curiam opinion in its place. The case, it held, was now controlled by Harrington v. Richter, and it affirmed the district court's denial of the petition. The district judge who had written the 2010 opinion dissented. Her dissent, submitted before she left the bench on September 1, 2011, argued that the two Supreme Court decisions did not require the panel to change course. In her view, no fairminded jurist could find it reasonable to deny a hearing on that record; the evidence of guilt was not overwhelming, the testing could have been decisive, and the record was incomplete precisely because the state court had refused a hearing. She would have reversed and sent the case back for an evidentiary hearing that included testing of the specimens.
The federal ruling did not end her efforts. In August 2013 her lawyer asked a judge for permission to test the tissue samples taken at the autopsy, to determine whether they might have been contaminated when the original testing was done. The lawyer described the defense as "steps away from a motion for a new trial," while acknowledging that it remained far from one. At that time she was serving her sentence of life without the possibility of parole in California.
She has maintained throughout that she did not kill her husband and that his death was a suicide. The jury rejected that account, and every court that has reviewed the conviction has left it in place.
The supervisor whom prosecutors called an unindicted co-conspirator was never charged with any offense in connection with the death, and he has denied any role in it.
The scientific question at the center of the federal litigation, whether further testing of the autopsy specimens would have shown contamination, has never been answered in court. The 2010 panel thought the answer could decide her claim; the 2011 per curiam opinion held that federal law no longer allowed the panel to find out; the dissent would have ordered the testing.
1995 (early): Kristin Rossum, then living in Chula Vista, meets Gregory de Villers at the San Diego and Tijuana border crossing.
1996, October: The couple become engaged.
1997: She begins work as a student worker at the San Diego County Office of the Medical Examiner.
1999, June: The couple marry.
2000, March: The office hires her as a toxicologist.
2000, June: A relationship with her supervisor begins, as she later admitted at trial.
2000, November 2: Her husband confronts her over her drug use and the affair and threatens to tell her employer.
2000, November 6: Her husband dies in San Diego.
2000, November 8: A longtime employee of the medical examiner's office reports the affair to police.
2001: She is arrested and charged with murder; her supervisor has returned to Australia.
2001, November 6: The District Attorney's Office files an information charging murder under Penal Code section 187(a), with a special circumstance under section 190.2(a)(19).
2002, October: Trial begins in San Diego County Superior Court.
2002, November 12: The jury finds her guilty of first degree murder and finds the special circumstance true.
2002, December: She is sentenced to life without the possibility of parole.
2005, June 13: The California Court of Appeal affirms the conviction, strikes a restitution fine and denies a concurrent habeas petition.
2006, December 15: She files a habeas petition in the California Supreme Court.
2007, August 8: The California Supreme Court denies the petition summarily.
2007, August 10: She files a federal habeas petition in the Southern District of California.
2008, May 16: The magistrate judge recommends denial.
2009, April 8: The district court denies the petition and the request to test the specimens.
2009, April 24: The district court grants a certificate of appealability on two grounds.
2010, April 6: The Ninth Circuit hears argument in Pasadena.
2010, September 23: The Ninth Circuit reverses and orders an evidentiary hearing with testing of the specimens.
2011, September 13: The Ninth Circuit withdraws its 2010 opinion and affirms the denial of the petition, with one judge dissenting.
2013, August: Her lawyer asks a judge for permission to test the autopsy samples.