For the first time, we are seeing the tissues that tested clean for arsenic and freed Marine widow Cynthia Sommer from jail. But the discovery of these samples is raising new questions about the role of prosecutors in the case. News 8 investigates why the district attorney's office now says they knew about the tissue samples all along.
Cynthia Sommer is out of jail after two and a half years, wrongly convicted of murdering her husband with arsenic. She's free because tests showed no arsenic whatsoever in previously untested tissue samples from her dead husband, Marine Sgt. Todd Sommer. In all, 31 tissue samples were taken from Sgt. Sommer's body at his autopsy in 2002. The tissues are encased in paraffin wax blocks. They were stored in the morgue for the past six years at the Naval Medical Center San Diego near Balboa Park.
On the day Cynthia Sommer walked free, the district attorney's office told the public on three different occasions that the tissues were newly discovered, once during the DA's news conference. "This case was done exactly the way it should be," District Attorney Bonnie Dumanis said. "We weren't aware of these until just recently, and as soon as we became aware of those, those were the ones we took to test."
They said it again in a motion to dismiss murder charges: "On March 20, 2008, investigators... learned for the first time that there were several samples... stored in paraffin cassette blocks." A third time in open court, prosecutor Laura Gunn assured the judge that she too only recently found out about the tissues. "I did not learn until March 20 that there was this set of evidence in paraffin, and when we learned we acted immediately," Gunn said.
Sommer's attorney Allen Bloom wasn't buying it, especially since Bloom had filed a motion nearly one year ago asking the DA's office to give him access to "...all of the body tissues... taken from decedent Todd Sommer... which are still in possession of the United States Navy..."
"I have heard from this district attorney who sits here right now, absolute unequivocal statements that there are no more tissues to test," Bloom said. But the tissues were at the Naval Medical Center San Diego, for the past six years, and now we're learning prosecutors knew the tissues were there from the very beginning.
The tissues were stored in a box on top of a shelf in the autopsy room. Inside the box were three sealed bags. Two had tissues fixed in formaldehyde, the other bag contained the 31 tissue samples in paraffin wax that exonerated Cynthia Sommer, and on the outside of the box was a memo written eight months ago by Navy Medical Examiner Stanley Adams, saying: "The enclosed materials for the above case were discussed in August 2007 with... prosecutor Laura Gunn. By mutual agreement, these materials should not be discarded..."
The memo indicates prosecutors knew about the tissues months ago, even as they argued in court that Sommer should be sent to prison for life. Dumanis declined to be interviewed for this report. Her spokesperson claims she misspoke at the news conference, and now admits,"When [Dumanis] said that was newly discovered evidence, it really wasn't. I guess it was newly re-discovered."
A spokesperson told News 8 prosecutor Laura Gunn also misspoke when she claimed in court she only learned about the tissues last month. "I did not play games. I did not hide evidence," Gunn said. In fact, the same 31 tissues samples are listed on Todd Sommer's original autopsy report from 2002, and again on a 2005 summary of evidence document.
"Gee, they didn't know until four years after the investigation, six years after Todd's death that all of a sudden in response to a defense request to get all the evidence, all of a sudden all of these samples come about," Bloom said. Prosecutor Laura Gunn says both Sommer's first attorney Robert Udell and her current attorney Allen Bloom should have known about the tissues.
In an email response, Gunn told News 8: "The defense always has access to tissues... [Mr. Bloom] had the same evidence list that I did regarding what remained at [Naval Medical Center San Diego], and was certainly welcome to make arrangements to have his experts view the evidence..."
"This is not a situation of the prosecution not knowing what was going on. They turned away, they put their head in the sand," Bloom said.
One expert says the tissues that originally tested positive for arsenic may have been contaminated in a military lab in Washington. The defense has always contended Todd Sommer died of natural causes, from a heart attack.
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