|UPDATE: On October 9, 2002, 9th Circuit affirmed Galbraith's right to sue Coroner for botched autopsy. The ruling came just short of a month after Nelson Galbraith's death on September 13, 2002. His family will continue the suit. Click HERE for the 9th Circuit Court Decision (pdf format).|
|UPDATE: July 29, 2002 - State
rips ex-coroner Ozoa in Galbraith autopsy
UPDATE: April 23, 2008: Apology, Money for Wrongful Conviction
UPDATE: April 24, 2008: Galbraith suit settled, investigator cited as prime mover in wrongful accusation
Nelson Galbraith says that a botched autopsy investigation led authorities to falsely charge him with killing his sweetheart of 60 years. He endured the pain and humiliation of a trial, divisions within his family and the agony of having to exhume her body to prove his point.
Now it's payback time.
By Loren Stein
Josephine Galbraith's death contained all the markings of a suicide. Her left wrist had been slashed superficially three times, called "hesitancy wounds" in the arcana of forensic medicine. A red nylon sash had been wrapped around her neck three times and double-knotted each time. Next to her lay a bloodied 8-inch kitchen knife, a bloody razor blade and a bucket containing a small amount of blood, her attempt to reduce the cleanup for family members who would find her.
There was no note and no tearful farewells. The 76-year-old mother of six was simply found dead by her daughter-in-law, lying face up on the bed in the guest room of the Palo Alto home she shared with her one-time spouse and high school sweetheart, Nelson Weaver Galbraith. A retired music school owner and insurance salesman, Galbraith told police he had been watching television in another room of their Wilkie Way home and did not even know that his wife had taken her life.
Just days before her death, Josephine Galbraith had been diagnosed with Parkinson's disease. She had watched her stepsister die slowly and painfully from the same illness five years before and was well-acquainted with its terrors. A strong-willed woman, she told medical workers, friends and family members in the weeks before her death four years ago that she saw no reason to go on living.
According to family members, her suicidal feelings were not a secret. She had sometimes screamed that she wanted to kill herself. She wrote letters to friends and family members expressing her intent. She told her son Don, "I want to kill myself, sprout wings and fly to heaven; I want to see my mother." Once, she told him she wanted to jump off the Golden Gate Bridge. She had asked her son David, a physician, to prescribe drugs to help her take her life, but he refused. And she routinely refused to take other medication prescribed for her.
Galbraith tried to put her affairs in order, canceling her Social Security benefits and calling the cemetery, Don says. She also told her daughter Bonnie to come visit her for the last time. "She wouldn't talk to her friends, she wouldn't go out of the house. She was completely changed," he says. "We didn't know if it was serious. But now I know it was serious, and it's too late."
Sharon Parady, a care coordinator at El Camino Hospital, later said that shortly before her death Galbraith appeared very depressed and talked openly about wanting to die.
To former Santa Clara County Chief Medical Examiner-Coroner Dr. Angelo Ozoa, the official cause of Josephine's death on September 18, 1995, was clear: asphyxiation from ligature strangulation. The manner of death, however, apparently remained uncertain. In his initial autopsy notes, Ozoa wrote "strangled by assailant." Yet on the death certificate given to the family, Ozoa listed the cause of death as "pending."
After performing the autopsy two days after Galbraith's death, Ozoa concluded that despite the signs of suicide, such an elderly woman could not have had the strength to tie the knots so tightly around her own neck and successfully kill herself. Not only would she have needed strength to do the task, he reasoned, she needed time. Galbraith--who suffered severe arthritis in her back and a slight case in her hands--would have had to stay conscious long enough to wrap the cord around her neck, tie a double knot, wrap it around again and tie another double knot, then repeat the process twice. The answer, according to the 70-year-old coroner, had to be foul play.
The only person on the premises at the time of Galbraith's death was her then 78-year-old former husband, Nelson. Even though there were no signs of a struggle or defensive wounds, 16 months later Palo Alto police detectives arrived at Nelson Galbraith's home and arrested him at gunpoint in front of his grandchildren and charged him with first-degree murder. The police had even disregarded an agreement made days earlier with Galbraith's attorney to allow him to surrender voluntarily into custody. He spent three days in jail before posting a $500,000 bail bond.
The Santa Clara district attorney's office vigorously prosecuted Galbraith in a two-and-a-half-week trial in Santa Clara Superior Court beginning in August 1998. Galbraith's oldest son, Bill, reportedly told police his father had several possible motives to kill his mother--though none of them were ever substantiated or presented as evidence--bitterly dividing the family. Along the way, the police lost evidence that was never recovered, most importantly the bucket Galbraith used to catch her blood. Nelson paid out $300,000 of his life savings in his own defense.
Deputy District Attorney Linda Condron argued that Galbraith could not have strangled herself with multiple knots at her age and in her state of health, and that if she had, there would have been much more blood on the sash. She also alleged that even if Nelson Galbraith hadn't killed her, he had assisted in her suicide. Defense attorney Phil Pennypacker countered that Nelson Galbraith has such severe arthritis in his hands that they are deformed, making it impossible for him to have strangled his wife. He presented evidence about the lack of blood splatters and called to the stand respected forensic pathologists who believed the cause of death was suicide. Galbraith's children spoke passionately about their parents and their marriage, as well as their mother's deep depression.
Ozoa's testimony as to his opinion of the forensic evidence was given top billing by the prosecution, who used his 18 years on the job, his presence and position to present what they believed was definitive evidence of homicide. At one point during a lengthy cross-examination by Pennypacker, Ozoa asked pointedly, "You're questioning my competency?" as if this in itself were preposterous.
Despite the cost and length of the trial, the jury wasn't swayed; it took them one day to vote for acquittal.
In September, Nelson Galbraith turned the tables on his accusers by filing a $10 million civil rights lawsuit against coroner Ozoa and Santa Clara County in federal court in San Jose, charging malicious prosecution and fraud. Galbraith's complaint alleges that Ozoa performed an inadequate autopsy, falsified his report and lied under oath at the preliminary hearing and trial to support his theory of murder.
Galbraith, now 80, seeks damages for wrongful arrest, emotional distress and defamation of character. He also wants his wife's death certificate changed from homicide to suicide. More importantly, the Galbraith family says they need to set the record straight.
Galbraith talked about suing the county the moment he was brought in for questioning during the murder investigation, according to his family and attorneys. Once he was absolved of the crime, his overwhelming relief turned to anger. Shortly thereafter he filed a claim for damages.
"I want to be vindicated," Galbraith says.
of his age and a tendency to ramble off point, he spoke clearly about
case and its devastating effects on his family. "It was a railroad job
from A to Z; I was never, never, never in the room when my wife died. I
was falsely accused by an incompetent coroner," he says. "My family's
name has been trashed [in news reports] from New York to San Jose; I
called the 'Red Sash Murderer.' I just don't want anyone else to go
what I had to go through."
Ozoa, for his part, is prepared to fight. "The charges are preposterous. I don't think there's any basis in fact for them," he says. Now 74 and living in Fremont, Ozoa retired in late 1998 after 18 years with the office, the last five of which he served as county chief medical examiner-coroner. Ozoa says he's never been sued before. "I stick by my opinion," he says, declining to comment further on the case, although he does allow that the lawsuit is "upsetting--it's a big surprise to me."
According to Galbraith's attorney, Stuart Kirchick, even if Ozoa is granted immunity from prosecution, the county could still be liable for his actions. "The county is liable as Ozoa's employer," Kirchick says. "It's also liable because the county knew [from 1993 to 1996] that the coroner's office was a bare-bones operation, which set in motion the wrongful prosecution of Galbraith." The systematic failures of the county to control, supervise and put in place sound policies and procedures resulted, Kirchick adds, in the deliberate indifference to the constitutional rights of others.
Galbraith's lawsuit comes on the heels of a Santa Clara County grand jury investigation into the workings of Ozoa's office, which was released in June 1998. In a blunt conclusion, the grand jury stated that the "office is under-funded, under-staffed, and poorly managed as a result of years of management neglect." The report also said there was no adherence to policies and procedures, and poor supervision, and they cited an investigative staff in disarray. Among the recommendations, they asked that Ozoa retire as soon as possible. Ozoa, however, submitted his request to retire before the report was issued.
Santa Clara County Executive Richard Wittenberg strongly refuted the grand jury findings, as does Ozoa, saying the report was based on biased testimony from a disgruntled staff with axes to grind. Wittenberg called the report "outdated and inaccurate" in his written reply. "It was also unfair to focus criticism on the Chief Medical Examiner-Coroner who has an unblemished record of public service in Santa Clara County for the past 18 years," he wrote.
"Most of the information they got was false, so naturally the outcome was very unfair and inaccurate," Ozoa says. "It undermined our confidence and our credibility. It was an injustice and a disservice to the community."
Ozoa's "unblemished record," however, has come under attack even within the county system itself. The County Department of Corrections, for example, hired its own forensic pathologist to dispute his findings of strangulation in another death, that of 350-pound county jail inmate Victor Duran, whose family is suing the city, county and various jail guards, a nurse and police officers for $5 million. Forensic pathologist Donald Ray, who served as coroner for King County in Washington state, reviewed the work of the coroner's office and disagreed with its conclusions. After reviewing the X-rays of the victim, Ray said that Duran had not died from strangulation and that the autopsy had been incomplete, a finding similar to criticism in the Galbraith case.
"[County officials are] essentially saying their own coroner is incompetent," contends Anthony Boskovich, attorney for the family of Victor Duran, regarding the county's decision to hire an outside consultant in the case. "When it fits them, the coroner is competent, but when it doesn't fit, he's not."
Galbraith's case, however, is not based on general dysfunction in the coroner's office alone. If he gets his day in court, he'll arrive armed with the kind of information the county administration and any coroner in Ozoa's shoes would likely dread: the results of a second autopsy performed on his wife's body.
During the murder trial, defense attorney Pennypacker had initially requested a coroner's inquest, which was denied by the district attorney's office. Later, on the advice of his civil attorney, Galbraith decided to take the macabre step of exhuming his wife's body from her grave in Half Moon Bay and having it transported to Salt Lake City and re-examined by a top-notch forensic pathologist. Although no family members were present at the exhumation, four Galbraith children witnessed the July autopsy by Dr. Todd Grey, chief medical examiner for the state of Utah. The re-autopsy cost the family $10,000.
After examining the body, Grey claims in his report that Ozoa failed to carry out basic forensic procedures and performed an incomplete autopsy of a female victim suspected of being murdered by strangulation.
More specifically, Grey--who also testified at the murder trial for the defense, a rarity for him as he usually testifies for the prosecution--says that Ozoa failed to do a detailed layered dissection of the neck, which is warranted in such cases. This procedure could have offered critical evidence as to the specific manner of death and the length of time it took Josephine Galbraith to die. Such medical information would have made it possible to determine whether Galbraith could have tied three double knots around her own neck before passing out.
Grey also says Ozoa failed to take any photos of the autopsy for later review, as is required in homicide cases. During the relatively brief 45-minute autopsy Ozoa performed, he did not save and preserve certain neck tissues and muscles, and he missed large and obvious scars on Galbraith's body as well as a partial hysterectomy, he says. Ozoa apparently didn't take into account the swelling of the brain and the many tiny burst blood vessels in Galbraith's eyes and face, evidence which suggests a slow death.
"I've no idea what [Ozoa's] motives were or his thinking, but from what he reported and the evidence, he did not do an adequate job if the diagnosis was homicide," Grey says. If a homicide is suspected, a coroner would need to document all possible locations of hemorrhage or other neck injury with a detailed dissection that strips all the muscle away and exposes the trachea, larynx and hyoid bone, he says. "The sum total of all the investigative information as well as the physical findings of the body point to the manner of death being suicide and not homicide. The facts were persuasive." Grey, Utah's chief medical examiner since 1988, says he has never seen a similar case brought against a colleague.
Ozoa also neglected to talk to family members and physicians or gather circumstantial evidence about Josephine Galbraith, her life and state of mind, according to Stuart Kirchick, Galbraith's attorney. He did not research the difference in forensic procedures for female strangulation victims in suicides and homicides, nor did he double-check his conclusions by consulting other experts.
In fact, one outside forensic expert consulted by the district attorney's office did weigh in on the evidence in November 1998 and found strong indications of suicide. Santa Cruz County Coroner Richard Mason studied the photos of the crime scene and noted that severing arm tendons in a suicide attempt takes powerful force and causes extreme pain. Galbraith apparently stopped short of deeply cutting her wrists, yet a killer, he said, would not have hesitated. He also told the district attorney's investigator that he saw no signs that Galbraith fought back against an assailant. And he said the nylon sash would have tightened up after the first knot was made but that she would have had enough time to make more knots before slipping into unconsciousness.
Ozoa missed or ignored extensive documentation by eminent forensic pathologists of cases where women have strangled themselves to death using multiple knots, including books found in Ozoa's own office, Kirchick says. Instead, Ozoa relied on his own limited experience with such cases, testifying that in his many years on the job, he had never come across a single case of suicide by strangulation.
"The autopsy was not done within the standard of care to make a judgment of homicide; moreover, the findings all point to suicide," Kirchick says. "Ozoa should be held accountable, and that's the bottom line. I don't know whether he felt malice toward Galbraith in particular or covered up a slipshod autopsy and early opinion that the manner of death was homicide. It seems he was backed into a corner and decided to try to justify his original position."
The acquittal, Ozoa says, was not especially shocking to him. "I've been involved in so many trials that nothing really surprises me," he says. Although he altered the finding on the death certificate to homicide, "My opinion as to the cause of death never changed." He explains that revising an inconclusive finding on a death certificate to a conclusive one is customary, as later test results have to be taken into account.
"In 60 years, my father never laid a finger on my mother, not a single instance," says son Dick Galbraith, who says that after his mother divorced his father in 1983 she came back to him five years later. Afterward, they took vacations together and even celebrated their 50th wedding anniversary. "He always loved my mother; she's the only person he's ever dated, ever been with. To have him accused of this horrible crime against the woman he loved, it's unfathomable the torture they put him through."
Galbraith himself returns over and over to the early days of his romance with his wife. "I met her when she was 16 years old," he says excitedly, "and in the first year I never even touched her." Galbraith met Josephine at a San Francisco high school, and they raised their family in Atherton from 1954 to the 1970s, later moving to Palo Alto. "It was very frustrating to see so many people lying on the witness stand and presenting evidence that was wrong," he says.
The case against Ozoa is more than a difference of medical opinion. In his autopsy, and later during his testimony at the preliminary hearing and trial, Ozoa said he had thoroughly examined and documented the internal structures of Galbraith's neck so as to be medically certain of his finding of homicide. This, Kirchick alleges, was false. He alleges Ozoa lied at the trial when he changed his opinion as to how long it would take Galbraith to lose consciousness when tying the cord around her neck. In the preliminary trial Ozoa said it could take up to several minutes, enough time to tie several knots; in the trial, he emphasized it could be as little as six seconds.
Proving Ozoa perjured himself on the stand would support Galbraith's allegation of fraud and bolster the civil case against him. If Ozoa is shown to have not acted in good faith, was reckless or committed fraud, qualified immunity may not hold up in court, Kirchick says. To his knowledge, there have been no reported cases similar to this one, he says.
In the initial stages of the investigation, the Palo Alto police department, led by Detective Michael Yore, believed Galbraith's death was a suicide based on the crime scene and the evidence. But four days later, they were advised by the coroner's office that Ozoa had changed the cause of death to homicide, and they opened a murder investigation. They submitted their report to the district attorney's office about three months later. There, for unknown reasons, the case languished for a year before Galbraith was charged with his wife's murder.
"I still believe it was homicide," says deputy district attorney Condron. "I'm surprised by the filing of this case, and I'm very interested to see what, if anything, comes out of it. But it has no influence on me whatsoever in terms of my view of the evidence." Adds Condron: "Any time you have an elderly couple it's a sympathetic situation that can hold great sway with the jury."
But Condron's support of the homicide charges against Galbraith doesn't square with the view of Ozoa's own former chief investigator, Charles Newman, a 28-year veteran with the Santa Clara County coroner's office. Newman, who was one of the first investigators on the scene and later testified at the preliminary hearing and trial, says he had "no question at the time or now" that Josephine Galbraith's death was a suicide. He tried to convince Ozoa as well.
"Everything fit to me," he says, listing the evidence as easily as if Galbraith died yesterday. He says he remembers the case clearly because the evidence of suicide was convincing and he "felt deeply for the family." The first knot was tied the tightest, he says, which is indicative of suicide; in homicides, the last knot is usually the tightest. Despite Condron's assertion that the small amount of blood found on the sash pointed to homicide, he says little blood was transferred to the sash because much of it had first dried on her hands. "Mr. Galbraith has severe arthritis in his fingers; he couldn't have tied those knots," he says. "The position of the blood splatters, the cuts on her arm, the tools she used, the way she was dressed--it all screamed suicide."
"When I heard Galbraith was being charged with murder I was appalled, I was astounded," adds Newman, who is now administrative medical examiner for the city and county of San Francisco. He also acknowledges that he and Ozoa often disagreed. "I don't know what [Ozoa] based his final conclusion on and I don't know why they proceeded with the criminal trials; I think that Mr. Galbraith is right to try to remedy a great wrong done to him. I feel very strongly there was a miscarriage of justice."
Pennypacker, Galbraith's criminal defense attorney, was also not surprised he brought suit. "I'm absolutely sure that Ozoa bungled the autopsy, but the extent to which he willfully perjured himself, I'm not sure," he says. "I'm used to having a very professional report coming out of that office and this job just didn't measure up. In the criminal cases I've done, there've been rather slam-dunk causes of death." Pennypacker notes that the first question asked by the foreperson to the judge after the jury announced their acquittal vote was whether the case had gone to a preliminary hearing. "What they meant was, how did the case get this far?"
The motion by Ozoa and the county to dismiss Galbraith's suit is slated for Jan. 11. "If the motion is thrown out in the beginning," says defense attorney James Towery, "we're relatively confident we'll win in the long run."
Galbraith, however, is ready to make his
stand. "My family
was left to defend themselves alone against a large bureaucratic
system," he says. "It's such a threatening position to be in--you're so
vulnerable, you have so little power. They were trying to take my life."