San Diego DA, and NCIS sued

SignOnSanDiego reports an interesting civilian case, but sufficiently relevant for this weekend.  (The judge has dismissed NCIS and AFIP as defendents.)

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]  should have raised flags about whether the sample was contaminated.

His wife was unsuccessfully prosecuted.  And now she has a civil rights law suit against the DA for $20M.

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.

And the connection:

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.

In a separate piece about the murder case there are intriguing comments when the defense is seeking a dismissal with prejudice.

Bloom argued that Deputy District Attorney Laura Gunn hid evidence that pointed to Sommer’s innocence. Specifically, he referred to a second set of tissue samples from Sommer’s deceased husband that were tested last year and revealed no arsenic.  Bloom argued that Gunn knew all along that the additional tissue samples existed, but failed to notify the judge, jury or the defense.

The tests, performed by the Armed Forces Institute of Pathology, showed extremely high levels of arsenic in two of Sommer’s organs and normal levels in others, which the lawyers say suggests contamination.

The attorneys also claim authorities knew or should have known that the second set of tissues, which led to the case being dismissed in April 2008, was “buried in a box in a closet at the Balboa Naval Hospital.”

And here appears to be NCIS looking for a friendly expert?  Not clear, but . . .

But Naval investigators pursued the case and found some tissue samples from the Marine’s body tested positive for high levels of arsenic, according to the complaint. They then looked for an independent expert to corroborate the results, but no one would. At one point, the person who conducted the tests even expressed doubts about the accuracy of the results, stating they may have been contaminated before they were stored, according to the complaint.

Sommer was arrested in November 2005 after an interview in which Naval investigators recalled the conversation from memory because they either forgot to hit the record button on the recorder or it malfunctioned, according to the complaint.

Are these the same investigators involved in the Martin litigation?

h/t to Prof. Berman at SL&P

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