A defense attorney argued Wednesday that a UPMC neurologist could not have been fatally poisoned by her husband with cyanide because the man who received her liver in a transplant remains in good health more than four years after Autumn Klein’s death.
During a 17-minute argument in Pittsburgh before a state Superior Court panel, attorney Chris Rand Eyster described a letter his client, Robert Ferrante, received in prison from the 62-year-old man who got Dr. Klein’s liver.
That the transplant was successful, Mr. Eyster argued, shows that Dr. Klein could not have suffered cyanide poisoning.
“It wouldn’t make sense for a person to be alive today if she had ingested that level of cyanide,” Mr. Eyster said.
Mr. Eyster asked a three-judge panel to send his client’s case back to Allegheny County Common Pleas Court for an evidentiary hearing that, he believes, could lead to Ferrante’s conviction being reversed..
Ferrante, 69, a onetime University of Pittsburgh neuroresearcher, was found guilty of first-degree murder in the April 2013 death of Dr. Klein, 41.
Following his conviction by a jury in the fall of 2014, Ferrante was ordered to serve life in prison with no chance for parole. He is being held at the State Correctional Institution at Houtzdale.
According to a court filing by Mr. Eyster that cites the letter, the man had been on the transplant list for about a year when he had the surgery. He described it as having gone “great,” and that he returned home after two weeks in the hospital.
“’And in these four years, I am still feeling great. All of the issues I had due to my liver disease have gone,’” the man wrote in the letter.
Mr. Eyster also argued that a toxicologist at UPMC, Dr. Anthony Pizon, said in an interview with police during the initial investigation into Dr. Klein’s death, that with the purported levels of cyanide in her blood 15 hours after admission to the hospital, Dr. Klein would have died within two to five minutes.
At trial, there was testimony, however, that the organs harvested by the Center for Organ Recovery and Education were cleared for transplant. No complications from cyanide poisoning were reported.
Mr. Eyster, in his argument, also asked the Superior Court to remand the case to Allegheny County Common Pleas Judge Jeffrey A. Manning, who presided over the trial, to address possible claims of ineffective assistance of counsel.
Among the issues Mr. Eyster has raised on appeal is the validity of the blood test conducted by Quest Diagnostics showing Dr. Klein died from cyanide poisoning.
After Ferrante’s conviction, Mr. Eyster learned of the 2009 conviction in New York of Nichols Institute, a subsidiary of Quest, for misrepresenting the reliability of a paraythyroid test and providing inaccurate results.
Mr. Eyster argues that that information would have been essential for Ferrante’s defense attorneys to both challenge Dr. Klein’s positive cyanide test, as well as to go after the company’s credibility.
But Superior Court Senior Judge John L. Musmanno countered that as a subsidiary, Nichols had nothing to do with Dr. Klein’s diagnosis. And Judge Jacqueline O. Shogan asked, “How many tests does Quest do? Are they all suspect?”
Mr. Eyster also argued to the panel that Quest failed to follow its own standard operating procedures when it ran Dr. Klein’s cyanide test, and therefore, the results should never had been admitted at trial.
Judge John Bender countered: “You had the opportunity to cross-examine those witnesses. What does the conviction of a corporate entity have to do with these people who testify as to certain findings?”
Mr. Eyster responded that Ferrante’s trial counsel, William Difenderfer and Wendy Williams, did not know about the Nichols’ conviction and so could not challenge Quest on that issue at trial.
Judge Bender questioned whether the prosecution team, Assistant District Attorneys Lisa Pellegrini and Kevin Chernosky, knew about the conviction.
“We don’t know,” Mr. Eyster answered. “I would submit the commonwealth should have known.”
He added that Quest’s attorneys were present throughout Ferrante’s trial, and that they had a duty to inform the commonwealth.
Assistant District Attorney Amy Constantine, who argued on behalf of the commonwealth, told the court that there is no reason to remand the case, and that the evidence Mr. Eyster was citing was all information Ferrante’s defense attorneys could have obtained prior to trial.
“It is not after-discovered evidence,” she said in brief argument. She noted, too, that there was no evidence the prosecution knew about the Nichols conviction prior to trial.
Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter: @PaulaReedWard.
First Published: October 25, 2017, 5:56 p.m.
