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September 2, 2011

Discussion of notable federal civil suit against (over-zealous? malicious?) local DA

A number of regular commentors on this blog sometimes suggest that prosecutors ought to be subject to civil liability at least in cases involving extreme prosecutorial misconduct.  Those commentors (and others, I hope) should be especially interested in this local story out of San Diego that a helpful reader forwarded to me.  The story is headlined "Cynthia Sommer's suit against Dumanis proceeds; The widow is seeking $20 million in case that could play out during DA's mayoral run," and here is how the piece starts:

The sample of U.S. Marine Sgt. Todd Sommer’s liver and kidney was full of arsenic, more arsenic than had ever been found in a human tissue sample before — by 1,250 percent, according to a court complaint. It was a level that one Canadian toxicology expert said should have raised flags about whether the sample was contaminated.

Despite the improbability, and the medical examiner’s official finding that Sommer died of natural causes, San Diego County District Attorney Bonnie Dumanis mounted an unsuccessful murder prosecution of Sommer’s wife, Cynthia. The death was in 2002, but one aspect of the case remains.

A $20 million federal lawsuit filed by Cynthia Sommer says that Dumanis’ office should have known better, and that the prosecution amounted to misconduct and a violation of the woman’s civil rights.

Prosecutors proceeded because they believed that Sommer stood to gain from a $250,000 life insurance policy. They said that her behavior following his death — she got a breast augmentation, partied and slept with other men — bolstered their argument. Dumanis says her office acted appropriately, that it dropped the prosecution once reasonable doubt was raised.

The Sommer lawsuit, filed in September 2009, has proceeded. The suit originally named Naval Criminal Investigative Services officials and scientists with a federal laboratory that made the arsenic finding. A judge has dropped them from the suit, leaving Dumanis, County Medical Examiner Glenn Wagner and the federal government as defendants. Also remaining as a defendant is Deputy District Attorney Laura Gunn, who once told the media, “This is the coldest homicide I’ve had, in terms of being absolutely coldblooded.” Dumanis and Gunn lost a bid to dismiss the complaint against them in May 2010.

Dumanis, who is running for mayor of San Diego, could be in a federal courtroom as early as March for conferences and pretrial hearings in the case. A settlement conference and a pretrial conference are tentatively scheduled for March 14 and April 23, respectively. The election is June 5....

Cynthia Sommer was convicted in 2007 of the first-degree murder of Todd Sommer five years earlier. She was granted a new trial after a judge ruled that her defense attorney made mistakes that deprived her of a fair trial. She was released in 2008 after prosecutors dropped charges against her when new tests of arsenic-free tissue cast doubt on whether Todd Sommer was poisoned.

Cynthia Sommer’s lawsuit contains allegations that Dumanis’ office colluded with Naval investigators to wrongfully charge and prosecute Sommer. At the heart of her attorney’s charges is the allegation that the parties knew the chief evidence was tainted. Those samples had extraordinarily high levels of arsenic — levels never seen in the history of reported arsenic testing, according to the complaint.

A former director of a lab in Quebec that determined there was no arsenic in the second samples called the original results “physiologically improbable,” and possibly contaminated. “It is our position that, in spite of the evidence that was there that clearly suggested this was not a murder, the parties continued to maliciously pursue my client’s arrest and conviction,” said Robert Rosenthal, one of several attorneys representing Cynthia Sommer.

Five county attorneys have worked on the case, spending more than 1,280 hours since it was filed to defend the officials, at a cost of more than $100,000 to taxpayers.

September 2, 2011 at 10:48 AM | Permalink

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Comments

It is not part of the job description of the taxpayer funded job to collude, to cover up exculpatory evidence, all with knowledge. The malice in the report makes exemplary damage appropriate if proven. Nevertheless, because the prosecutor acted outside the job description, the damages should come from the personal assets of the prosecutors, and of the judge, especially, the boss of the trial, fully responsible for its damages.

One good thing is that this tort now takes away the full moral intellectual, and policy justifications for violence against the prosecutor and the judge if ever brought to account.

Aa all of us have to, let the prosecutor and judge buy insurance to shield personal assets.

Posted by: Supremacy Claus | Sep 2, 2011 11:36:31 PM

yea SC i'm still tying to find where in ANY govt job description is it part of the job to

LIE, CHEAT, STEAL, FAKE EVIDENCE and so on!

so how anyone put a lawyer or politician can claim with a straight face it's job related is beyond me!

Posted by: rodsmith | Sep 3, 2011 2:53:44 AM

Respondit superior is unfair, unconstitutional, and a regulatory plundering of productive entities by the lawyer. Unless the employer has induced the crime, the employer should be responsible for the crimes of its employees.

Posted by: Supremacy Claus | Sep 3, 2011 10:38:49 PM

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