Defendants are denied new trials when their attorney was drunk, slept, or witnesses lied, or evidence was withheld. Cynthia Sommer got a new trial, because she belongs to a category our judiciary is loath to lock up.
On Friday, November 30, 2007, San Diego Superior Court Judge Peter Deddeh made a finding that Cynthia Sommer received ineffective representation from her former defense attorney, Robert Udell, and he ordered a new trial.
Cynthia Sommer 33, was convicted of murdering her husband, Marine Sgt. Todd Sommer 23, by poison, in order to obtain a life insurance payout in the amount of $250,000 and nearly $2,000 a month in military Dependency and Indemnity Compensation (DIC).
Todd Sommer's death on February 18, 2002, was initially listed as caused by cardiac arrhythmia, although he did not have a history of heart disease, and his heart was described as morphologically normal.
At the time of his death, tissue samples were preserved and sent to the Armed Forces Institute of Pathology (AFIP). More than a year after his death the tissue samples were tested and it was discovered that Todd had 1,020 times the normal levels of arsenic in his liver and 230 times the normal level of arsenic in his kidneys. Following the finding of arsenic in his organs, the cause of Todd's death was ruled a homicide. After an investigation, an arrest warrant was issued for Cynthia Sommer on November 29, 2005.
Like most ambiguous murders, perpetrated by white middle class and above (WMCA), Cynthia Sommer was given a free pass until her behavior became too offensive to ignore. Spending sprees, breast reconstruction, promiscuity, partying and abuse and neglect of her children, inspired somebody to take a second look.
The behavior that made Cynthia Sommer stand out as an unusual widow, may have played a role in her conviction, but most of the evidence of her bad behavior should not have come in, because it was not relevant in determining whether or not she murdered her husband.
Evidence can't be admitted in a criminal trial if it is not relevant in determining whether or not the person charged committed the crime they're being tried for. Sometimes even relevant evidence can be excluded, if it is so prejudicial that it could compromise the objectivity of the jury. When that is the case, the state's responsibility for providing a fair trial, outweighs the probative value of the evidence. However, excluded evidence cannot be contradicted without "opening the door" to allow that evidence to be admitted.
Cynthia's attorney, Robert Udell, got the court to agree that her promiscuity and wild partying after her husband's death was too prejudicial, and it was therefore excluded. But during the course of the trial, Udell proceeded to use Cynthia's mother to describe her daughter as laying prone in grief and involved in church activities. That contradicted the excluded evidence, thereby "opening the door" to its admission. Consequently, the judge reversed his decision, and the jury was allowed to hear that Cynthia commented on her husband's insurance policy as he lay blue and unresponsive on the floor at the foot of their bed; asked the person driving behind the ambulance, containing her dying or dead husband, to stop for cigarettes.
Finally, the jury heard that, in the wake of Todd's death, Cynthia got a boob job, took on several lovers and partied hard.
Robert Udell's error, that led to the admission of Cynthia's unmournful behavior, may sound unique to a person who is not very familiar with the practical application of law, but the truth is, that type of error happens all of the time.
Lawyers juggle multiple issues and endless facts, and they're bound to ask the wrong question some time. What's unusual is an attorney declaring himself ineffective for having done so and, what's equally unusual, is a judge agreeing with him. Cynthia Sommer's attorney not only represented her well, he literally fell on his sword when he publicly discredited himself in order to support her bid for a new trial. But her best gift came from the judge. Even though Robert Udell submitted his position in writing, the judge ordered him to appear in court so that everyone could see the "justification" for, what may be, the lowest standard for a determination of ineffective counsel, in the history of the American judiciary.
Increasingly our judiciary operates according to who you are rather than established rules. Cynthia Sommer belongs to the class most likely to receive special consideration from American courts. She's a middle-class white female whose reasonably good looking.
Even though Cynthia is barely middle-class, and seems to be heading nowhere fast, every tier of law enforcement applied the standard most likely to keep her out of jail. By contrast, Kemba Smith, a *Diasporan college student, the only child of two professional parents, could not secure a new trial after three years of appeals. Her attorney advised her to confess to an, unprovable, guilt by association, with her live-in, drug dealing, boyfriend, who was deceased. Purportedly for a promise, by the prosecutor, of a minimal sentence. What she got for her confession was a 24.5 years, maximum sentence, of which, every year had to be served.
Kemba's attorney was not merely ineffective, he was virtually an agent for the prosecutor. He handed the prosecutor a conviction that could never have been achieved by trial, even if her attorney never opened his mouth! His attitude toward his client was reflected in his response when she told him she was afraid, after she signed the confession. He snatched the paper from her hand and replied, "so am I ." I think that was to "say," you should be afraid . . .
Cynthia Sommer will get another chance to try to convince a jury that she should be released from prison. And if you're worried about
Kemba Smith, don't. After six and a half years in prison, Bill Clinton pardoned her.
*Diasporan: A descendant of a survivor of the African diaspora.
