Poisoned Love

by Caitlin Rother

  Goldstein had brought up Berdan’s case during the preliminary hearing because it had some rather interesting parallels with Kristin’s. There was, however, one important distinction, which Goldstein tied in to Kristin’s case: Dr. Harry Bonnell did the autopsy on Berdan’s body at the UCSD Medical Center because Berdan was an employee of the Medical Examiner’s Office, but his toxicology tests were done in-house by Russ Lowe. Goldstein said Kristin, who was a student worker at the time, had reason to believe that Greg’s toxicology tests would be handled the same way.

  Berdan’s wife, Barbara, said she came home on the evening of February 8, 1999, to find her forty-five-year-old husband playing with their children. He said he’d already eaten some potato soup and didn’t need his wife to make dinner for him. He fell asleep, sitting up on the couch, and Barbara raised his feet so he was lying down. He didn’t wake up, but that wasn’t unusual, and he was snoring loudly. She checked on him at 2 A.M. and again at 5 A.M., and he was still snoring. She returned to bed to read, checking on him again before she took a shower. When she got out, she didn’t hear him snoring and found he wasn’t breathing. She called her son to help her, but they couldn’t rouse him. They pulled him to the floor and started doing CPR. He was turning blue. She was unaware that Stan had called the doctor from work the day before because he was still suffering from a migraine headache he’d had for three days.

  His coworkers reported that he’d been acting and talking so strangely throughout the day that they relieved him of duty at a death scene and a colleague dropped him off at his parents’ house. His mother fixed him some soup, then his parents drove him home, where he arrived about ninety minutes before his wife came back. Berdan, who’d been to urgent care over the weekend because of the migraine, had been given a prescription for butalbital, a nonnarcotic sedative, and an injection of Demerol, a narcotic painkiller. His wife was unsure when he’d last taken any medication before he died.

  Curiously, the lab did send a blood sample to the Pacific Toxicology Laboratories to test for fentanyl. It came up negative. So Bonnell ruled Berdan’s death an accident caused by the ingestion of two pain medications: butalbital and methadone, a narcotic.

  Roger Meadows, one of Kristin’s attorneys in the civil case, filed court papers in February 2002, arguing that the one-year statute of limitations had expired by the time the de Villers family filed their wrongful death lawsuit.

  The de Villerses’ lead attorney, Craig McClellan, repeated his previous explanation for the delay—that Kristin had initially termed Greg’s death a suicide, and the family had no tangible evidence that it was a murder until Kristin’s arrest on June 25, 2001. McClellan argued that the court had “impliedly” agreed by overruling Meadows’s objection to the lawsuit.

  Meanwhile, Michael Robertson’s attorney attempted to stop McClellan from gathering information on Michael in the civil case. The attorney, Michael Gardiner, filed papers saying that his client had never been criminally charged in Greg’s death, yet “he lives every day under the threat that such a charge could be made at any time.”

  On May 17, Superior Court Judge John S. Meyer granted Kristin’s request to temporarily block McClellan from gathering information against her—until the end of her criminal trial or until she waived her Fifth Amendment right against self-incrimination, whichever came first.

  Constance and Ralph argued that they were too busy with their daughter’s criminal defense to be deposed in the civil trial. The judge granted a delay, but their depositions were rescheduled for July.

  On July 16, just days before those deposition dates, Kristin filed for bankruptcy in Los Angeles, contending she had $30,862 in unsecured debt to twelve creditors, mostly credit card companies. The largest bill was $10,542 in American Express card purchases made after Greg’s death and up until she was arrested. The de Villers family’s wrongful death claim was listed as an “unknown” amount. The filing immediately halted the civil case and moved it from state court in San Diego to federal court in Los Angeles.

  McClellan argued that this was a legal ploy to unfairly manipulate state law and block his clients from moving ahead with their $2.1 million claim against Kristin, her lover, and the county of San Diego. Kristin filed Chapter 13 bankruptcy, which is intended for people who are temporarily unable to pay their debts but would like to do so in installments within three to five years. She was proposing to pay $330 a month for three years. In September a bankruptcy judge ordered the civil proceedings to resume against Kristin. The bankruptcy claim was dismissed in December, after Kristin’s criminal trial was over.

  Kristin’s attorneys, still attempting to ensure their client got a fair trial, filed a motion in late August, asking to move the proceedings to another county because of unfair media coverage.

  By this time, Kristin’s case had been nicknamed the “American Beauty Murder” on national television shows such as 48 Hours, Inside Edition, and Good Morning America. In addition to blanket coverage in The San Diego Union-Tribune, which had a Sunday circulation of nearly 450,000 at the time, her case also had received national attention in People, Cosmopolitan, Good Housekeeping, Reader’s Digest, and the Star, as well as in the Los Angeles Times, which is among the nation’s largest metropolitan newspapers.

  The defense commissioned a survey and polled 303 people living in San Diego County by phone in late April. Fifty-seven percent said they were aware of the case, and of those, 20 percent said they believed Kristin poisoned her husband. Only about 4 percent believed she didn’t poison him. Nearly 75 percent said they needed more information to form an opinion, and 2 percent refused to answer. The margin of error was 5.6 percent.

  Kristin’s attorneys also asked the judge to dismiss the special circumstances allegation that she used poison to murder Greg. Although the district attorney decided not to seek the death penalty against Kristin, he did not drop the poison allegation that made her eligible for it.

  Eriksen argued that the term “poison” was too vague and was not defined in state law. He also argued that fentanyl was not a “recognized poison.” Citing Webster’s Dictionary, Eriksen wrote that poison was defined as “‘a substance that through its chemical action…kills, injures or impairs an organism.’ This definition would not cover or include fentanyl or any other narcotic drug used as a painkiller or anesthetic, because such drugs are primarily used as medicine and for their therapeutic value, and they do not usually kill, injure, or impair people.”

  Goldstein and Hendren countered that poison was defined in California criminal jury instructions as “any substance introduced into the body by any means, which, by its chemical action, is capable of causing death.” When mixed with clonazepam and oxycodone, they said, fentanyl “surely may cause substantial injury or illness and fall within the definition of poison.”

  Thompson sided with the prosecution and denied the poison motion. He said he’d defer ruling on the change of venue motion until after the jury selection process, when he could determine whether he’d been able to seat a fair and impartial panel.

  Chapter 16

  Goldstein was ready for trial by the original start date in June, so he was able to take some time off and then review the case again closer to the new date in October. It had taken him months to carefully craft his opening and closing statements, while also compiling questions for potential jurors during voir dire and for defense witnesses on cross-examination. He planned to use preliminary hearing testimony and numerous statements the Rossums made to the media to impeach them at trial. Their responses to MSNBC.com’s questions were among the most fruitful, because he felt the Rossums “went too far” and, as a bonus for him, they did it in writing.

  Kristin had lived a chaotic life. In his opening statement, Goldstein’s challenge was to make sense of her behavior for the jury when the conduct itself didn’t make sense. The details were complicated but interesting, and he worked long and hard to make them fluid.

  When he cross-examined Kristin, his strategy was to stay
organized and keep control of her testimony, jumping around somewhat so that she couldn’t tell the story the way she wanted, in a linear fashion. He planned to keep her off guard, force her to admit she’d lied, make her concede to incriminating evidence, and stay in her face until she ran out of answers. He needed to persuade the jury that she was guilty and be entertaining in the process.

  A month before jury selection started, Alex Loebig held a mini mock trial for several hours in the library of the Public Defender’s Office. Six people—a witness expert and her husband, who was a prosecutor and former criminal defense attorney; two investigators; and two others who worked in the office—listened to Kristin practice answering Loebig’s questions on direct examination and Eriksen’s on cross.

  Both attorneys thought she did fine on direct but thought her answers on cross were not convincing enough. Loebig and Eriksen knew the success of their case rested primarily on whether the jury believed her version of events.

  “I told her a lot of her answers were very weak and I didn’t think the jury would accept them,” Eriksen said.

  She insisted, for example, that everyone knew people were supposed to separate pills from their vials in case they fell into the wrong hands, such as a child who doesn’t know what he’s taking. So, she said, Greg must’ve thrown away the vials but not the pills. Loebig thought the story was simply ludicrous. Eriksen tried to persuade her that it was farfetched, but she held fast.

  “I don’t think anything we could have asked would have made it more likely that she would have made a better witness at trial,” Loebig said later.

  Constance and Ralph held fast to their explanations for the evidence as well. Loebig and Eriksen kept hoping that they could find evidence to support some of them, such as the many theories about how Greg could have obtained the fentanyl on his own, but that didn’t happen. In the end, the defense attorneys had nothing more than Kristin’s word to back her claim that Greg had accompanied her to the lab and could have nabbed some fentanyl when she wasn’t looking. No witnesses had seen him there, other than when Kristin first started as a student worker.

  Kristin continued to deny every adulterous relationship the prosecution alleged, including those with the two men she’d e-mailed, Dan Dewall and Joe Rizzo. Both men denied during phone interviews with the prosecution that they’d engaged in sexual encounters with Kristin. But Loebig and Eriksen decided not to call them to the stand because they thought it would only make the two men sound like liars and hurt the defense’s case.

  “Those e-mails, in my view, were fairly explicit,” Eriksen said.

  The prosecution felt the same way.

  Right up to the trial, Loebig continued to try to persuade Kristin to agree to a plea bargain with the prosecution. Loebig and Goldstein had discussed whether Kristin could provide compelling details about her lover’s involvement in Greg’s death and whether she would be willing to testify against him. Goldstein later said he “made no offers,” though he was “always willing to discuss what the defense has.”

  But Kristin wouldn’t budge.

  “She just wasn’t interested,” Loebig said. “She denied her own guilt or his…. She loved her boyfriend and didn’t want him to go to prison and thought she would be acquitted.”

  On October 2, two days before jury selection was to begin, Loebig and Eriksen met with the two prosecutors in Goldstein’s office. Loebig asked if there was anything else he should know. Goldstein broke into a smile and said, yes, in fact, there was.

  In combing through mounds of subpoenaed documents, their thorough paralegal, Meredith Dent, had found something very interesting. She’d carefully examined records for nearly a year’s worth of Kristin’s purchases, before and after Greg’s death, and hit pay dirt with the supermarket in the strip mall next door to La Jolla Del Sol.

  At 12:41 P.M. on the day Greg died, Kristin used her Vons discount card to buy a bottle of nighttime cold medicine, four cans of soup, a Bic cigarette lighter—and a single rose with baby’s breath.

  After hearing this, Eriksen looked like he’d just been run over by a truck. He and Loebig knew the rose receipt, especially at the eleventh hour, was going to be devastating to their case. They immediately went back to Loebig’s office and called Kristin at her hotel. Here they were, two days before trial, with this potentially damning bombshell dumped in their laps. How could she have kept this from them?

  Despite the concern in their voices, Kristin sounded somewhat nonplussed by the news. She was having trouble remembering the Vons purchases and didn’t offer any explanation. She and her attorneys arranged to speak face to face about the new evidence. But before they could get together, Kristin had a breakdown.

  Paramedics responded to a 911 call from Kristin’s hotel room and found her lying facedown on her bed, hugging a teddy bear. They took her to the hospital, where she was admitted and treated with something to quell the anxiety. During the trial, she would deny that the episode was sparked by news of the Vons receipt. She testified that she was having muscle spasms and panic attacks because jury selection was only two days away.

  “I was scared to death,” she said.

  Dent also found that Kristin used her Washington Mutual Visa check card on November 6, 2000, to withdraw $240 from the ATM in Vons. Greg’s wallet contained cards from a different bank and supermarket—Wells Fargo and Ralph’s. That same day, Kristin’s credit card records showed she did some other shopping and filled up on gas—twice, which led Goldstein to assume she drove to Tijuana to buy drugs. She spent $80.61 at Cost Plus, $69.88 at Crate & Barrel, and $16.15 at Sears.

  And finally, while her husband lay in bed, drugged and dying, she spent $111.50 on lingerie at Victoria’s Secret.

  The morning of Friday, October 4, finally arrived, and the four attorneys talked jocularly about sports in Thompson’s courtroom as they waited to begin the tedious but important process of jury selection. Goldstein, his hair freshly cut, paced around the prosecution table, handed one of the hefty jury questionnaires to Loebig, and popped a mint into his mouth.

  Goldstein had been preparing for this trial for nearly two years. Simultaneously nervous, excited, angry, and ready for battle, he lived for moments like these. He felt like the master of the universe and, at the same time, lucky to have such an important case. He tried to freeze time, just long enough to appreciate where he was and what he was about to do. He hadn’t come there to lose.

  Kristin sat at the defense table wearing a dark gray suit, the highlights in her hair even blonder than before.

  At 9 A.M., Judge Thompson read an order that prohibited recording devices and any kind of cameras not just in his courtroom, but on the entire third floor of the downtown courthouse. He said he would aggressively enforce his verbal warning that no reporter was to speak to the jurors or he would “throw his ass in jail.”

  Seating during jury selection would be limited, he said, so much so that the media probably would be excluded from the afternoon sessions. Thompson decided, however, that he would reserve the first two rows of the small courtroom for the media during the actual trial and would also ensure that seats were always available for Kristin’s parents and the de Villers family.

  The judge, Kristin, and her attorneys moved to another courtroom for a closed hearing, where jurors were assigned numbers so they could remain anonymous. Each juror was asked to fill out a twenty-eight-page survey with 105 questions and to read a list of 135 potential witnesses to see if they had a conflict of interest with any of them. When the attorneys initially met to discuss what to include in this questionnaire, Thompson told them they were “going to know more about this group of people than generally you will know in any other trial.”

  After the hearing, the 150 potential jurors spread out on wooden benches in the hallway and scribbled responses during the lunch hour. They were asked personal questions, such as whether they’d had affairs, petitioned the court for a restraining order, or attended a twelve-step program for an addiction to drugs
or alcohol. They were asked whether they voted in the most recent election or watched Court TV, Law and Order, or Crime and Punishment—all of which involve trials and the legal system. And they were asked whether they had had any bad experiences with law enforcement, had been treated by a psychiatrist or marriage counselor, or had knowledge of the specific drugs that would be discussed during the trial. A number of questions pertained to media coverage of the case and whether they’d formed any opinion about Kristin’s guilt or innocence based on what they’d read in the newspaper or watched on television.

  After the jurors completed the questionnaires, the attorneys for both sides made copies they would study over the weekend, identifying which people they wanted as jurors and which ones they didn’t.

  Thompson said he had no objection to the Union-Tribune’s request for a copy of the witness list and a blank survey, but he left it up to the attorneys to decide. Both sides said no. The newspaper’s attorney filed a motion requesting an immediate hearing to obtain the documents and to gain full access to the jury selection process.

  “This trial is of tremendous public importance,” attorney Guylyn Cummins wrote in her motion. “It involves serious allegations of murder, drug use, and spousal abuse…. The public is interested in this case and entitled to see how the critical issues it raises are resolved through the judicial process.”

  At a hearing on Tuesday, Thompson agreed to release the documents. He also agreed to make courtroom seats available to the media during voir dire. However, he said he’d changed his mind about reserving the first two rows of seats for reporters, saying the newspaper’s attorney had persuaded him that he shouldn’t grant preferential treatment to the media over the general public. This was not the decision Cummins had been working toward.