As district attorney for San Diego County, the buck stops with me. In the high-profile prosecution of Cynthia Sommer for murder, our office made the right choices for the right reasons at every step in the process. But last week, we were all reminded the criminal justice system is not perfect, and I understand how recent developments in the case raise several questions.
Were tissue samples tainted? Could new testing have been done sooner? How could a convicted murderer suddenly walk out of jail a free woman?
I wish things had gone differently. But there are checks and balances in the criminal justice system designed to protect both crime victims and criminal defendants along the way. As prosecutors, we followed our ethical duty in this case. And while Sommer came close to spending the rest of her life in prison, the system eventually worked.
Much has been reported and alleged in recent days about the facts of the case and the actions of our office. I would like to set the record straight.
After Marine Corps Sgt. Todd Sommer died, we were confident the evidence pointed to his wife's guilt. The key was very high levels of arsenic in Todd's body, which led the medical examiner to rule his death a homicide. Based on the levels of arsenic found in Todd Sommer's organs, expert opinions about arsenic poisoning, no other medical explanation for his death, Cynthia Sommer's apparent financial motive, her odd behavior and other evidence, we filed murder charges.
It was Todd Sommer's tissue samples containing arsenic that were essential to the case. In fact, the samples were tested on three occasions, including by a lab chosen by the defense. Each time the testing showed high levels of arsenic. Had we not filed murder charges after determining there was enough evidence to prove this case, we would have been ignoring our duty as prosecutors.
During the trial, and for the first time in the process, the defense mounted strong challenges to the findings of arsenic in Todd Sommer's body. The defendant's experts raised new questions about the reliability of the arsenic testing both during trial and afterward.
At the end of the trial, 12 jurors found beyond a reasonable doubt that the evidence showed Cynthia Sommer committed murder. They found her guilty of first-degree murder.
A judge granted a new trial – not based on the arsenic evidence – but because he found Cynthia Sommer's attorney had not adequately represented her.
We began to prepare for a new trial. And in fairness to the defendant, we carefully evaluated the newly submitted reports about arsenic testing by the defense and the testimony of the defense witnesses. In doing so, we consulted with new experts of our own without regard to the expense to get a fresh look at the arsenic testing.
We then sent military investigators back to the autopsy suite where Todd Sommer's tissue samples are stored to check for possible arsenic contamination. We did all this in an abundance of caution, and because it's our job to pursue the truth.
During their visit, investigators noted several additional tissue samples that had never been tested. The samples were from the same organs previously tested, but had never gone to a lab. It's not unusual for testing to only be done on some representative samples in a case like this. These samples had, in fact, been included on an inventory list and given to the defense before trial. But neither the defense nor the prosecution had requested they be tested because they weren't considered to be the best quality samples.
Based upon concerns raised by the new experts, we continued our search for answers. We immediately sent those additional samples to be tested by a new lab and a new expert in Canada both recognized as the “gold standard” for this kind of analysis. The results shocked us. The report came back showing no arsenic in Todd Sommer's newly tested samples.
All of this new information created reasonable doubt. Doubt about the evidence. Doubt about the cause of death, which was the essential basis of our prosecution and had triggered the entire investigation.
Within hours of hearing confirmation of this new information, we dismissed murder charges against Cynthia Sommer. We did not want her to spend even one more day in jail, and we took action as soon as the judge in the case could review our motion in court. As prosecutors, when we receive information like this it's our duty to act, and act quickly.
The District Attorney's Office did not suppress evidence or play hide the ball with the victim's tissue samples. The defense knew about the additional tissue samples for years, and they were available for them to test. The recent cries of Cynthia Sommer's defense attorney that we took too long to act are unfair and inaccurate.
We had a legal and ethical obligation to Todd Sommer to file murder charges. Likewise, we had a legal and ethical obligation to dismiss those charges when the circumstances changed.
In the wake of this dismissal, we will roundtable the case internally to determine if anything could have been done differently – just as we do in every high-profile prosecution.
In the end, Cynthia Sommer was separated from her loved ones for more than two years, and Todd Sommer's family is left wondering what really happened to him. This new information has raised more questions that deserve answers. Did the lab contaminate evidence? How did Todd really die? Our office will continue its duty to seek the truth.
Dumanis is San Diego County district attorney.
