San Jose Mercury News

Decade-old autopsy casts long shadows

January 23, 2005

Nearly a decade after 76-year-old Josephine Galbraith of Palo Alto was found dead in her home with a red sash knotted around her neck and slits on her wrist, she continues to haunt the Santa Clara County coroner's office.

What began as a case of elderly suicide evolved into a failed murder prosecution of Galbraith's husband of 50 years, Nelson, whom a jury acquitted in 1998 after just a few hours of deliberations. He in turn filed a $10 million civil rights lawsuit claiming that he was railroaded by a coroner whose sloppy work led to his arrest and prosecution.

Nelson Galbraith died in 2002 at age 83. The lawsuit, taken up by his sons, has languished in the court system for years.

But a federal appeals court ruling last month has revitalized the case, authorizing the Galbraiths to subpoena documents and depose witnesses. And they intend to cast a wide net in their effort to show misconduct by the medical examiner's office, not only in their father's case but also in others.

Pattern of misconduct

``The goal of the lawsuit is to ensure that no one else has to endure the tragedy that Nelson Galbraith endured,'' said Michael Goldsmith, a law professor at Brigham Young University who is representing the Galbraiths. ``The law requires us to establish a pattern of misconduct, so it is fair to say we would be examining a range of cases consistent with having to prove that requirement.''

Attorney James Towery, who is representing the county and its former medical examiner, Dr. Angelo Ozoa, called the lawsuit a ``case of misdirected anger.'' Although there may have been shortcomings in Ozoa's autopsy of Josephine Galbraith, the now-retired coroner was not ultimately responsible for the decision to prosecute Nelson Galbraith, Towery said.

``The family is picking one piece in a long sequence and saying it was the cause of all their harm,'' Towery said. ``That's an overly simplistic view of what happened.''

The lawsuit focuses mainly on the work of Ozoa, who performed the autopsy of Josephine Galbraith after she was found dead in a guest bedroom of her Palo Alto home on Sept. 18, 1995. A red sash was tightly knotted three times around her neck. Next to the bed was a bucket filled with blood that had seeped out of cuts in her arm. A bloodied razor and knife were found near her body.

Nelson Galbraith said at the time that he had been watching TV in another room, unaware of what his wife was doing.

Initially police treated Josephine Galbraith's death as a suicide. Ozoa declared it as such. But within a month police, citing subsequent findings by the coroner, said they believed she was killed. Then in late January 1997, nearly 18 months after Josephine Galbraith died, the Santa Clara County District Attorney's Office charged Nelson Galbraith with murder. According to family members, Galbraith, 78 at the time, was arrested at gunpoint and taken to jail in handcuffs. He was placed in solitary confinement for a few days until he was released on $500,000 bail.

When the case went to trial in 1998, then-Deputy District Attorney Linda Condron, who is now a Superior Court judge, told jurors that it would have been physically impossible for Josephine Galbraith to tie such tight sash knots herself. Nelson Galbraith may have been only trying to help his ailing wife, but his assistance still amounted to first-degree murder, Condron said.

Nelson Galbraith's defense attorney noted that just days before her death, Josephine Galbraith had been diagnosed with Parkinson's disease and was severely depressed. It was Nelson Galbraith, suffering from severe arthritis in his hands, who lacked the strength to tie the knots, he said.

Husband acquitted

Jurors acquitted Nelson Galbraith after less than one day of deliberations. One juror said after the trial that the jury agreed it was possible Nelson Galbraith played a role in his wife's death, but there was too much doubt to convict him of murder.

The trial divided the Galbraith family, with one son siding with prosecutors but the five other children rallying behind their father. Two sons, Richard and Don Galbraith, have continued to push the lawsuit since Nelson Galbraith died in 2002.

Autopsy questioned

The lawsuit claims that Ozoa performed a shoddy autopsy of Josephine Galbraith and then lied to cover up his mistakes. In 1999, family members took the extraordinary step of having their mother's body exhumed and re-examined by the chief medical examiner of Utah. According to his report, Ozoa did not perform basic procedures required in a ``ligature strangulation'' case such as this, including thoroughly dissecting the neck and photographing his work.

In his defense, Ozoa said he did not perform a more thorough autopsy because he initially believed her death was a suicide. The autopsy report, however, labeled the death a homicide, which would have called for a more thorough examination. Ozoa said the homicide notation was added to the report later.

Ozoa, who resigned as medical examiner in 1998, a few months after a scathing grand jury report about his office's practices, later was forced to defend himself against charges of incompetence before the Medical Board of California. The board in 2003 said that although there may have been problems with Ozoa's examination of Josephine Galbraith's body, they did not constitute gross negligence or incompetence.

But questions have arisen about Ozoa's testimony before that board, including statements that he had never previously performed a ligature strangulation autopsy, the type involved in the Galbraith case. Records show that he had done five such autopsies before.

Reached by phone recently, Ozoa, who is 79 and retired in Fremont, referred questions to Towery, the attorney representing him and the county. Towery said the language Ozoa used in his autopsy report on Josephine Galbraith could have been ``more precise,'' but he declined to say how so. Towery also declined to address questions about Ozoa's testimony before the medical board.

The recent court ruling could expose the long-troubled medical examiner's office to scrutiny in a range of cases as the Galbraiths attempt to show that county officials tolerated a pattern of misconduct. Goldsmith, the family's attorney, declined to say which cases he plans to examine further. But the Galbraith case is one of several publicized blemishes that have plagued the office.

In another high-profile case, the medical examiner's office determined that 32-year-old Victor Duran was strangled to death in 1998 while in custody at the county jail. But an investigation by the sheriff's office found no evidence that Duran was assaulted in jail. The county settled the lawsuit with the Duran family for $207,000 in 2000, after two outside forensic experts disputed the county coroner's ruling that Duran was strangled while in jail, County Counsel Ann Ravel said.

Last year, the coroner's office admitted it lost the bones of slaying victim Russell Jordan. It was the second time Jordan's family endured the loss of their son -- he disappeared in 1982, and his remains were found 13 years later.

And in 2003 Ozoa's successor, Dr. Gregory Schmunk, resigned amid reports that he had ignored a warrant charging him with stealing books from a former employer.

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