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Prosecution's Failure to Recover - Test Evidence: 2008 Example of Wrongful Conviction

Posted by Dmitry Gorin | Apr 27, 2008 | 0 Comments

People on the street ask criminal defense lawyers - how can you represent a murderer? The Law Blog's frequent response is that a client is just accused of murder, and may actually be innocent. The next question may be - How is this possible? Hasn't the police done its job and gone after the right person? A criminal lawyer obviously reviews each client's defense on a case by case basis - and his or her job is to provide a zealous defense, to ensure that the prosecution has proven its case. Sometimes the police, the prosecution, and even the jury get it wrong: garbage in, garbage out.In other words, if the evidence in a case is somehow wrong, or misleading as to what actually happened, then the result could be just as incorrect. A recent case in Southern California illustrates the point of how effective criminal defense helps the innocent. In San Diego, California, a widow was accused of poisoning her husband, for insurance money. The prosecution further alleged that she used the insurance proceeds, not on her kids, but on plastic surgery, multiple lovers, and large parties. Further the evidence showed that she appeared to not be grieving after her husband died and, ultimately, was convicted by jury of his murder.After the jury verdict, Defendant Cynthia Sommer hired a different criminal defense attorney - who may have been asked "how can you represent a convicted murderer, an evil woman?"As a result of the new lawyer's efforts, and after his client Cynthia Sommmer had spent close to 3 years in custody, San Diego County Dist. Atty. Bonnie Dumanis moved to dismiss murder charges against her, telling reporters that overlooked evidence and new scientific scrutiny had poked holes in the prosecution's assertion that she used arsenic to kill her husband. It was a startling conclusion to a murder prosecution built on a tabloid-style scenario of a scheming wife poisoning her younger husband, watching as he died and then -- soon after -- getting a $5,400 breast augmentation, partying and having sex with several partners. Within hours of Dumanis' announcement, Sommer was free. "I never lost any hope, faith or anything....You can never give up if you're innocent," she told the press.In November 2007, a jury had convicted Sommer of first-degree murder, but the trial judge overturned the verdict, ruling that prosecutors' description of her "lifestyle" was so inflammatory that it deprived Sommer of a fair trial. She had been convicted of murder with special circumstances -- murder for hire and murder by poison -- that carried a mandatory life sentence without possibility of parole. Deceased Todd Sommer, 23, was stationed at Miramar Marine Corps Air Station and appeared to be in excellent health when he fell ill and died within days in 2002. Married in 1999, the couple had a son. Cynthia Sommer had three children by a previous marriage.When she was arrested in 2005, she had moved to Florida. Prosecutors had said Sommer killed her husband to collect on his $250,000 life insurance policy and begin a new, fun-filled life. She had remained in jail while prosecutors prepared for a second trial. In response to a discovery motion by Sommer's new defense attorney, prosecutors gathered all the tissue samples that had been taken from her husband's body, including some that were not tested before the first trial. When they had the new samples tested, forensic experts could not find arsenic -- creating what D.A. Dumanis called reasonable doubt that Todd Sommer had died of arsenic poisoning. An expert newly hired by the prosecution also suggested that earlier samples in which arsenic was found had been contaminated. The new criminal lawyer told the press that it should not have taken a defense motion to make prosecutors gather samples that had remained at the San Diego Naval Medical Center since Todd Sommer's death.During the jury trial resulting in the wrongful conviction, San Diego County Superior Court Judge Peter Deddeh told prosecutors he would not allow evidence about Sommer's behavior after her husband's death. But Deddeh relented when defense attorney Robert Udell opened the door by introducing his own evidence of Sommer as a grieving widow. After the conviction, Deddeh ruled that her attorney's error had deprived Sommer of a fair trial.The evidence about her breasts, drinking and sexual activity "became like an overwhelming cloud that covered everything," said her new attorney. Even as both sides prepared for a second trial, prosecution investigators were again asking Sommer's friends questions about her behavior after her husband's death, the new criminal defense lawyer said. He was prepared to call experts who would suggest that Todd Sommer died of a heart ailment or reaction to weight-control pills or an anti-diarrhea prescription medication.So even in 2008 there is a risk that without a zealous and thorough criminal defense, a person may be convicted and yet be completely innocent of the charges. Tagged as: california criminal laws, faq, jury trial defense, motion to dismiss unlawful police search


Kyle Reilly on May 1, 2008 at 9:22 p.m. wrote: Criminal lawyers play a vital role in the continuing success of our trial system. Similar to class where Professor Gorin explained his reasons for being a layer, the article says, Tyler Marik on May 1, 2008 at 7:57 p.m. wrote: I can understand what a tragedy putting a person in prison under false circumstances. However my response to this case begs a question, Who is at fault for issuing a wrongful conviction? Is it her attorneys fault for using her conduct to depict her as a grieving widow thereby allowing the prosecution to depict her as a partying swinger? Is it the judges fault for allowing evidence in the trial that should not have been allowed, or evidence that was irrelevant? Is it the crime labs fault for failing to identify or misidentifying evidence leading to the conviction and the arsenic? Or is it the prosecutors fault for zealously perusing a conviction with trumped up charges against an innocent defendant. To me none of these above people are at fault. It is a miracle that our justice system can function the way it does (after having my eyes open in Comst174), the woman in this case was convicted after a series of unfortunate mishaps, and she was aquited (although three years later) and the wrong was righted. The power of appeal is a very good tool of our justice system, and despite a multitude of mishaps on the part of the participants in this case, in the end it is a miracle and a somewhat beautiful thing that these injustices were righted. Ashleigh Lew on May 1, 2008 at 5:57 p.m. wrote: What I find most interesting about the Cynthia Sommer case is how much emphasis that Sommer's behavior and 'lifestyle' following her husband's death received in the hearings. Whether it be through media exposure (where she was portrayed as a scheming woman who poisoned her younger husband with arsenic and used his money to get 'a $5,400 breast augmentation, party and have sex with several partners') or through the prosecution's arguments that she had the 'motive' to commit the crime (e.g. for the life insurance policy), the idea that an Sommers' acts following her husband's death implicates her as a vindictive murderer amazes me. At the same time, I thought it was ridiculous that it took a defense motion more than three years after the husband's death for the prosecution to scrounge up old evidence which, in turn, proved Sommers' innocence. I believe that it really makes one consider the long-term consequences that cursory police investigations (and perhaps societal backlash) can have on an individual, and, in essence, the judicial system (since Sommers was continually denied a fair trial).

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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