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Licking County toxicologist granted immunity in tainted murder case

ANNIE YAMSON
Special to the Legal News

Published: July 2, 2014

The 6th U.S. Circuit Court of Appeals granted summary judgment to a forensic toxicologist recently, reversing the U.S. District Court for the Southern District of Ohio’s ruling that he fabricated evidence.

The 6th Circuit also dismissed a cross appeal as improperly certified from Virginia LeFever.

LeFever was convicted of murdering her estranged husband, William, a week before their final divorce hearing in 1988 following his overnight dinner visit to their family home.

According to case summary, William displayed erratic behavior during the evening and into the following day.

The family called paramedics after LeFever discovered several pills missing from an old antidepressant prescription.

“Before he died of cardio-pulmonary arrest, William purportedly admitted to a nurse that he took the pills in a suicide attempt,” case summary states. “But another nurse claimed that he said LeFever force-fed the pills to him.”

The Licking County Coroner’s Office investigated the overdose and found multiple bruises on William’s body.

Franklin County’s chief toxicologist, James Ferguson, performed tests on tissues obtained during William’s autopsy.

Ferguson found that William died from exposure to amitriptyline, a key ingredient in the antidepressant, as well as nortriptyline, a toxic metabolite.

“Additional tests detected amitriptyline in William’s lower colon and in an intramuscular injection site on his buttocks,” according to case summary.

The facts of the case provided by the court of appeals state that Newark police soon found evidence of foul play.

In a search of LeFever’s home, they discovered hypodermic needles, syringes, rodent-killing poison peanuts and sunflower seeds and the charred remains of “Smoke’em” fumigation pesticides.

LeFever’s children told police that, on the night of William’s visit, LeFever lit a “Smoke’ems” in a bedroom while William slept and then left with the kids.

Another witness reported that, during a phone call two days before William died, LeFever joked about finding a hit man and mentioned William’s $20,000 life insurance policy.

LeFever was indicted in November 1988, but, before her trial could begin, Ferguson, the toxicologist, and the Franklin County director of forensic toxicology issued a supplemental report.

The report noted the presence of arsenic as a contributing cause of William’s death and ultimately concluded that William “died as a consequence of multiple administrations of toxic agents.”

Toxicologists detected arsenic throughout the body but what took center stage was the report’s assessment of “very high arsenic levels in the dried feces” which “combined with the lack of any pathological sign of gastric erosion ... consistent with an oral dose, lead ... to the conclusion that the arsenic may also have been administered rectally.”

During LeFever’s murder trial, Ferguson testified to a “reasonable scientific certainty” that the arsenic was administered rectally.

In 1990, LeFever was convicted of murder and spent more than 20 years in prison until revelations about Ferguson’s “misrepresented credentials” surfaced.

It was found that, in numerous cases, Ferguson testified he received his degree from The Ohio State University in 1972 when, in fact, poor grades prevented him from completing his degree until 1987.

In November 2012, the trial court ordered a new trial.

“In granting the new trial, the court expressed doubts about LeFever’s innocence, but concluded that Ferguson’s testimony tainted the trial,” wrote Judge Deborah Cook for the court of appeals.

Since then, LeFever has been released from custody and the underlying indictment was dismissed without prejudice.

LeFever proceeded to file an action claiming that Ferguson and others fabricated evidence and withheld exculpatory evidence.

She also cited a manuscript that Ferguson authored during the investigation of William’s death titled, “Angel of Mercy or Angel of Death?”

LeFever characterized the work as a sensationalized “dime-store novel” that falsely insinuated that she killed William and three other relatives.

She also cited the fact that, during a deposition in 2012, Ferguson recanted his trial testimony about the rectal administration of arsenic.

The district court granted Ferguson qualified immunity on the concealment claims but denied qualified immunity on the fabrication claim, finding a genuine issue of fact regarding whether he concocted the arsenic-administration theory.

“According to the district court, a reasonable juror could view Ferguson’s 2012 deposition as admitting that he made up that part of his 1990 trial testimony,” wrote Judge Cook.

Ferguson appealed the denial of summary judgment on the fabrications claim and LeFever, wishing to file a cross appeal on the grant of qualified immunity on the concealment claims, moved for certification.

The 6th District dismissed LeFever’s cross appeal after finding that it was improperly certified but it found merit to Ferguson’s claims.

“Deeply rooted in common law, testimonial immunity protects the integrity of the trial process by preventing witnesses from self-censorship out of fear of future liability,” wrote Judge Cook. “But it offers no protection to pretrial conduct, including the fabrication of evidence later adopted in trial testimony; that receives only qualified-immunity protection.”

The district court, Judge Cook pointed out, rejected Ferguson’s absolute immunity defense because LeFever targeted his pretrial conduct.

But she noted that it failed to consider the immunity’s application to the fabrication claim.

On review, the circuit’s three-judge appellate panel found the alleged fabrication occurred at LeFever’s trial, not before it.

LeFever contended the fabrication occurred in Ferguson’s 1989 supplemental toxicology report but the appellate panel noted the report only stated that “arsenic may also have been administered rectally.”

“Unlike his trial testimony, Ferguson’s supplemental report offers no opinion as to the likely route of arsenic administration, but recognized a possible route,” wrote Judge Cook.

A transcript of Ferguson’s 2012 deposition testimony demonstrated that he had no opinion as to which type of arsenic administration was more likely and he could not “state to a scientific probability how it got in there.”

Ferguson told the court that he held that same opinion at the time of LeFever’s original trial.

The court of appeals found that each of Ferguson’s deposition statements called into question his 1990 trial testimony, “but none discredits the supplemental report’s conclusion that the ‘arsenic may have been administered’ that way.”

Judge Cook concluded that LeFever offered no evidence contradicting the supplemental report’s facts or that Ferguson fabricated any pretrial evidence.

“At most,” she wrote, “LeFever’s highlighted evidence suggests that Ferguson perjured himself by embellishing his arsenic theory in his trial testimony.”

With no evidence of pretrial conduct supporting LeFever’s fabrication claim, the court of appeals ruled that the district court erred in denying Ferguson absolute immunity.

“We therefore reverse this aspect of the district court’s judgment,” Judge Cook concluded.

Judges Gilbert Merritt and Jane Stranch joined Judge Cook to form the majority.

The case is cited LeFever v. Ferguson, Case No. 13-3935.

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