Trace of Suspicion - Ep. 6: Reversal of Fortune

A prisoner transport bus is not generally the happiest of places.

“Inmates, shackled and chained to one another,”

are either on their way to court or headed back to the slammer.

It is almost always a commuter ride of misery.

Except on the afternoon of November 30, 2007, the trip from the San Diego Courthouse, back to the lost Colleen as women's detention center, was positively joyous. I love better now. Yeah, I love better.

Word had spread. One of their own, inmate number 6040265, had just had her conviction overturned. Cindy Summer was getting a new trial. It was a long shot.

I was going through a mouth hole with a Mac truck, so-- There had been a lot of smiles and high fives on the bus that day. Yeah, because-- That morning, Cindy had been a convicted felon,

looking at a life sentence.

Now, at least in the eyes of the law,

“she was once again innocent until proven guilty.”

No warning. Lian, I've been innocent for the past two years, so-- innocent, perhaps, but far from free. Man, it's hard. It's life right now.

And there's nothing I can do about it right now. Back at the detention center, Cindy told her cellmate that judges decision to toss her conviction had caught her by surprise. I don't think it hit me until he said that I have the right

to trial within 60 days. It still seems like a dream sometimes. A dream? Oh, yes. Certainly, as compared to the nightmare, she had been living.

And I'm like, we meet all the media's upfront for me. And I'm like, well, what happened in your case? I'm like, I don't know.

“In this episode, you will hear how new evidence”

completely upended the prosecution's case. What we did was take some of the evidence that we just discovered, by the way, existed and had that examined. You will hear how prosecutors themselves came under scrutiny. The district attorney knew all along that this evidence existed

and intentionally told the defense that it didn't exist because it was willing to try to win before trying to do justice. And you will hear how Cindy Summer tried to balance the scales of justice. You can't give my daughter's problems back,

getting her driver's license, you can't get any of that stuff back. I'm Josh Maygwoods. And this is the final episode of "Trace of Suspicion," a podcast from date one. Episode six, "Reversal of Fortune."

The judge's gavel echoed through the courtroom like a Starter's gun and defense attorney Alan Blue Liu. He was now in a race against time. With Cindy Summer's murder conviction overturned and a new trial scheduled to begin in six months,

Blue had a very long list of things that had to be done. Chief Among them was to find ways to undercut and disprove the prosecution argument. The Todd Summer had died from arsenic poisoning. They came up with results to show arsenic in amounts

that has never ever been able to be found

in the history of our cynical testing before. As Bloom saw it, the testing done by the Armed Forces Institute of Pathology was riddled with problems. And back in 2003, whatever happened in the basement of that AFIP Cold War Citadel had resulted

in some kind of historic mistake. These are the people who test our water and rocks to see if there's arsenic. I don't think they've ever tested human tissues before. I know the chemist in this case said he had never done it,

using a machine that had never been done before. Without an established standard procedure for handling human tissues, the lawyer thought it possible those tissue samples could have been mishampled and perhaps contaminated in some way

before the actual testing began. I don't know if their contaminated contamination is one potential. It could be a number of different things, but I can tell you that the results that they found

are abarational. In fact, the findings were so extraordinary that when the district attorneys office asked other experts to validate the military labs findings, they found no takers.

So they go to expert after expert after expert and those experts say we won't sign off on this

That alone might be enough to raise reasonable doubt with a new panel of trial jurors.

“But what Bloom really wanted was to undercut”

the prosecution case at its base and prove the results from the Armed Forces Institute of Pathology Environmental Division were bogus. And that is where this story takes yet another surprising twist. Turns out the Navy pathologist who did Todd Summers' autopsy

had saved not one, but three sets of sample tissues. Once that was frozen, another was preserved in formaldehyde and therefore untestable. And one more was kept in paraphen blocks, which can be stored without refrigeration.

Those first AFIP tests, the ones that found all that arsenic,

were done on the frozen tissue samples. So then what about the paraphen preserved samples? Wouldn't a second round of tests on those samples definitively settle the matter? Well, maybe.

Alan Bloom says prosecutor Laura gun told him, those paraphen preserved samples had been lost or destroyed. She said they don't exist. Not tissues exist. All the tissues that existed in the case were sent

to the Armed Forces Institute of Pathology, AFIP, who did the testing for NCIS.

“Bloom thought those tissues could be the key to this case.”

And, if they were missing, he wanted to know why. So he persisted. Pappering prosecutor gun was requests for detailed chain of custody documents, regarding those missing tissues.

She sat her people back to the hospital and looked for them. She didn't do that out of the goodness of her heart. She did it because of emotion. I had brought to track down the chain of custody of it. Her people found that the tissues existed.

By then it was late March, just two months before Cindy's second trial

was scheduled to begin. Alan Bloom says he was out of the country. When he received an email telling him that miraculously, the paraphen preserved tissues had been found. I get the report that say, yes, the tissues exist.

And they are the paraphen tissues, meaning it's retestable tissues. They are available for testing.

“I said, no, don't do any of the tests until I get back.”

I got back a few days later and by that point she had already sent out the tissues. The prosecutor did not send the tissues back to the armed forces Institute of Pathology, the lab that had done the original arsenic testing in this case. Instead, she sent them to a lab in Canada. And even though that lab had a good reputation for testing human tissues,

Alan Bloom was steamed. I was limited that she had done it without having a chance to have it reviewed by us and so forth, the technical parts of it. It was late on a Thursday afternoon. And attorney Alan Bloom was chasing a little white ball around a San Diego area course.

And he received a message from the court clerk. They call me a four o'clock. I happened to be standing on the number 17th hole of Beboa golf course, which is a part of three. And I get a call from the court clerk saying that he judge is going to conduct a hearing in 30 minutes to dismiss the case.

Do I want to be present? Yeah, I think I want to be present. This miss, the summer case. Now the next 30 minutes were a mad dash.

First of the parking lot.

Then in a white knuckle drive through early rush hour traffic. When I shot in the courtroom or in my blue you seal it off, should it end my UCLA cap? No time to change. No, straight from the friction the golf course to my car,

to the courthouse, to the courtroom, whereas a fair amount of press has been gathered, which is interesting to me, because I didn't call anyone in the press. He made it by 445. Seated at the prosecution table was Laura Gunn.

At that point in a relatively matter of fact situation, they said we have done retesting. We have a doubt that's whether or not we can prove this case and we move to dismiss it. It was done that quickly.

And that was that. After years of investigation, a month long trial, and for Cindy, 876 days behind bars, it was over. And here's why the Canadian lab had tested those paraphernal preserved tissues initially tested by AFIP.

And they had found no arsenic in any of them. That included samples from Todd Summer's liver and kidney.

Arsenic is not what killed Todd Summer.

“To Allen Blue, it all seemed so anti-clomactic and also”

so underhanded. They wanted to do this without me being present at all. They waited before a clock hoping I wouldn't even be found. They were going to dismiss this case without me being present. And they did it without Cindy being present. As you know, we just moments ago made a motion to dismiss

in the Cynthia Summer case at a hastily cold press conference. San Diego District Attorney Bonnie Dumanis put the best possible spin on a humiliating development. Today, Justice was done. This is how the system is supposed to work.

While the DA held her press conference at the courthouse, Allen Blue was on his way to the detention center where Cindy was being held. And Cindy still had no idea about any of this. I was sitting in my jail cell when I had a deputy come over the loudspeaker and tell me that I needed to come up front.

So they popped my droop my door and they're like, "I don't know what's going on." I'm like, "I don't know what's going on." And they're like, "There's like all of the media is out front for you." And I'm like, "What do you mean all the media is out front for me?" And they're like, "What happened in your case?" I'm like, "I don't know."

“And he goes, "Well, maybe you need to call your mom and let her know you're getting out of jail."”

And I was like, "What?" Like what you're talking about? So I call my mom and I'm like, "What's going on?" And she's like, "You're getting out. Alan will be there to pick you up." So I just went and I gathered my stuff and I went out. And that's when I had found out they dropped the charges. And...

Because there was no ours. Because there was no ours, Nick. It was a little after 7 p.m. when Cindy Summer walked out of the detention center, wearing a white t-shirt and jeans. She was carrying a bundle of her belongings in her arms.

Waiting outside to record the moment and her reaction to it was the usual news media scrum. TV cameras, microphones. And various notebooks, scribblers. I'm still in shock. I really cannot believe that I'm standing outside of the jail right now. I knew all the long that the testing was wrong and I was just waiting for

that to come out. Besides her, it was her attorney, Alan Blue, still wearing his powder blue UCLA golf shirt. To him, the criminal case was over, but the battle was not.

These are tissues which were should have been reviewed beforehand and never

ever were. Now I don't know which is worse. Putting your head in the sand and ignoring the evidence or purposely hiding from it. I don't need to prove to anyone that an innocent science just proved it. This was a night for celebration and it called for a drink. So Alan Blue took a small group of associates along with his suddenly not-killed

client downtown to toast Cindy's release. There was just one problem with that plan. After two and a half years behind bars, Cindy carried no ID. We went to a particular restaurant in order to celebrate to have a beer, probably the first beer Cindy had had in several years and to have some food.

“And when we went in to this restaurant bar, they asked for her ID because you have to be a certain age.”

She didn't look under 20. One, but you got to have an ID to get into a bar. She didn't have any ID because of the bomb and taken away. She came straight from jail and they said, "I'm sorry, you can't come in." And we said, "It was at that moment that up on the TV of the bar was the image of her getting released." And the story about her getting released. And we said, "Well, she's right up there, if you want to know what's going on." I mean, there she is released,

right at that moment. And did that do it? No, it didn't do it. But they said, "Now, so we went to get to another place where they didn't ask for the ID or something like that." The good feeling from this abrupt reversal of fortune lasted all weekend. By Monday, Alan Blue's temperature was rising again. In TV interviews and an op-ed in the local newspaper, district attorney Bonnie Dumanas had insisted that there had been nothing wrong with the way

her office handled the summer case. In my opinion, everything was done the way it's supposed to be done in a criminal case. That's San Diego DA, Bonnie Dumanas. A judge looked at it at a preliminary hearing and sent it to trial in 12 jurors, heard all of the evidence, and found her guilty. According to DA Dumanas, Cindy's release proved not that her office had made a colossal mistake,

one that nearly put an innocent woman behind bars for life for a crime that never actually happened.

You know, our office has values in a mission statement. We vigorously prosecute,

but we also protect the rights of the defendant. So today, just as prevailed. Alan Blueam was outraged. No one should ever, ever let this go, the word go out, that the system worked in Cindy's case. In the weeks and months that followed, the defense lawyer went on the offensive, prosecuting the prosecutors in the court of public opinion. It shouldn't be a game. It shouldn't be a situation where let's see what we can get away with.

“And that's what happened in this case. No. In Alan Blueam's mind, the only wrongdoing in this case”

had been done by prosecutors wearing our suits. And that he vowed would not go unpunished. [music] When the Cindy Ego District Attorney's Office dismissed its case against Cindy Summer in April 2008, they did not exactly hand her a get out of jail freecard. You've got to be feeling some sort of anger. But you have to go through this. Of course, I'm angry. Of course, I'm, um, um, yeah, of course.

It was not as if the DA had said, "Arabad, so sorry. Let's let bygones be bygones." No, not at all. In Cindy's case, prosecutors asked the court for a dismissal without prejudice. That's legalese for we want to keep our options open. And reopen the case if new evidence comes to light.

“I think the system worked for everyone and what happens next will have to deal with later.”

Alan Bloom thought that was BS and said as much at the time. District Attorney knew all along that this evidence existed and intentionally told the defense that it didn't exist and turned its back on its evidence because it was willing to try to win before trying to do justice. In Bloom's opinion, that amount of depressive tutorial misconduct. He immediately filed a motion to have the terms of the DA's dismissal changed from without prejudice to with prejudice.

Meaning those charges could not be refiled. If a judge agreed, it would mean the case against Cindy

would finally be over. And she would not have to live the rest of her life worrying and wondering

“if the San Diego DA was at some point. Going to come back for her. The thing that they know that they”

should do is to say we made a mistake. This is over once and for all. And we're not going to try to in any way leverage any gains in publicity over the life of the young woman. American system of justice is designed to be adversarial and also by law and by custom. It is supposed to be a cordial competition, a rules-based process in which opposing attorneys face off in good faith in the pursuit of justice. There is a measure of respect and trust between opposing

counsel that is expected to make the system work as it should. Alan Bloom says once he learned the tissue samples the prosecutor had claimed did not exist. Did exist? Well, that trust went out the window. The circumstances clearly show that she was worried about what was going to happen when they retested. I didn't trust them at all. So Bloom said his own investigator to the San Diego Naval Medical Center or Todd Summer's body was autopsyed and were some of his tissue samples

were still stored. The investigator found the box containing Todd's tissues in the same storage room where they had been for the past six years. Turns out Laura Gunn had known those very testable tissues existed long before she told Alan Bloom about them. She had the conversation with Dr. Adams, he's ahead of the department and found the box and there it was exactly on top of a

refrigerator where it had been stored all the time. So what he did and she never knew he did this

was right a memo and said it taxed this memo to the top of the box. It was that memo. They did 31 August 2007 which says we discussed the presence of these tissues and so forth and so on. And the memo said do not destroy. Keep these tissues. The memo said we fully discussed the interior of products of what's in here and by the agreement we're going to keep the tissues

existence of that memo because that absolutely confirmed that she had for that eight month period of time known about the existence of these having all along said that these tissues don't exist.

“And try to keep them a secret for you. Absolutely kept them a secret. She Gunn is attempting to put”

Cindy Summer in prison for the rest of her life again knowing that these tissues exist and she covering it up and not letting people know about it. Flint that was out of here is there any legal justification for not handing over potentially exculpatory evidence to the defense if you're a prosecutor? It's absolutely no justification. In fact they're a U.S. Supreme Court case called

Brady basically says the prosecution has the absolute duty to do that because you got to be fair

when you're a prosecutor. She knows this that's black letter law. As you might expect the news media was alerted and soon TV crews were beating a path to that storage room at the Naval Medical Center to document Bloom's Fund. The footage shot there showed the box, the paraphernal preserved samples and what Bloom considered the smoking gun memorandum still taped on top. Now as of August 2007 her obligation then as an attorney to say they do exist and she said silent through the month

of September. She said silent through the month of October. Then we had our motion for new trial in November. We went through five days of courtroom proceedings which was like a mini trial.

“I think you were there or you saw the proceedings yourself and during these five days she said”

silent. She told no one that these exonerating tissues existed. She said nothing about it in December and nothing about it in January of 2008 and only revealed that as we're getting ready to do the second trial. Only because I started to pursue the matter even further and raise the issue. In August 2009 more than a year after Cindy's release from jail. Alan Bloom asked the court to grant her a complete and total exoneration. On the grounds of quote

outrageous governmental conduct, unquote. District attorney lied about them, said they didn't exist. In court filings he laid out his allegations of misconduct against the San Diego DA's office and the mishandling of evidence by the lab that did the initial testing. Chapter inverse. According to one of those filings, when Laura Gunn was asked about her failure to disclose the

existence of evidence critical to the defense at that hearing. Laura Gunn said,

“"I forgot." When she first was confronted with the existence, where are these tissues?”

She said that none of the tissues existed. Then I said, "Well, how do you go about explaining the fact that your own reports and the autopsy report shows that tissues do exist?" And she said, "Okay, some tissues do exist but they're the wrong kind. They're not the kind that can be retested." And then when we confronted her with Dr. Adam's memo showing that she herself knew that these tissues existed, that were the kind of tissues that could be tested.

She said, "Oh, I forgot." And it reminded me of Bart Simpson who gets his hands stuck in the cookie jar. I didn't do it. Nobody saw me do it. Can't prove a thing. In their own court filings, the District Attorney's Office argued Cindy did not deserve a full exoneration on the grounds of outrageous governmental conduct because the prosecutor Laura Gunn had done nothing wrong. She claimed she had told Cindy's first attorney Bob Udell

that the paraphernal preserve tissues still existed before trial in 2006 and that Udell did not ask to have those tissues tested. According to the DA, Bloom was told in May of 2007 that "preserved tissues" unquote, still existed. Not paraphernal preserve tissues mind you but preserved tissues. Everything above board. The tissues were tested and Cindy was released and all worked out in the end. But according to the DA, none of that meant Cindy was totally innocent.

It only meant that for the moment they could not prove her guilty the other reasonable doubt. Our case was premised on the fact that Todd Summer was poisoned by arsenic. That is Cindy A. Go DA, Bonnie Dumanus again. And when the information came forth from experts that are renowned, that say they can't tell us with a medical certainty that he was in fact poisoned by arsenic.

At that point, we stopped. That is the bottom line. The judge hearing the motion

internal emails at the DA's office, which Bloom believed, would prove the prosecutor

“purposely ignored the existence of potentially exonerating evidence. The judge ruled,”

California law did not allow for that kind of discovery. I am not going to create new law. I am not going to go beyond the statutory and case law authority in California because I can't. So, motion denied. The judge said, my hands are tied. I invite you to please bring it to the higher courts to see if the courts are empowered to do it for that reason. We did appeal it,

and I are quite said no. The following month, in September 2009, Cindy Summer filed a $20 million

civil suit, seeking damages from the NCIS agents who investigated her. The chemists at AFIP, the Armed Forces Institute of Pathology, the people who had first tested Todd's tissues, and San Diego Deputy DA, Laura Gunn. That lawsuit also failed when a federal judge found the NCIS agents had not been negligent when investigating her, and that Cindy's attorney presented no evidence that the Armed Forces Institute of Pathology had done anything wrong.

“If you're going to do a lawsuit, you have to show that the evil culprit is the person”

that actually caused you to be in jail unjustly. And in Cindy's case, they filed suit against NCIS. But NCIS's defense was look. We didn't make the final decision. We found this evidence. It's the DA who made the call. So, they also filed suit against AFIP. And AFIP said, look, we didn't prosecute her. We found the results. If we messed up, we messed up, but we didn't lie about what we found. As for Cindy's claim against Laura Gunn, the prosecutor in this case,

the judge ruled, her lawyers had failed to prove that Gunn had hidden evidence, falsified evidence, or new or should have known that Cindy was innocent. For Cindy Summer, that was the end of a

“terrible, awful, horrible, never to be repeated decade in her life. A decade that began with”

her husband's death, a decade that included being accused of murder, thrown in jail, and losing custody of her children. All of it while burning through her family's life savings, money that went to pay for Cindy's legal expenses. And yet today, she retains a sense of humor about it. I probably would do things differently. I don't know if I regret doing anything. Tell me about wanting to get breast implants. Because you know, the government and the prosecutors

treated this as like, I killed Todd to get boobs. I would never ask this except. I'm not showing

you. No, I don't want to know. laughter is supposed to be good for the soul. Perhaps because it allows for distance and helps put even the darkest days of one's life in perspective. Cindy Summer's past still casts an indelible shadow. Not a thing to be forgotten necessarily, but a marker nonetheless. And as you will hear, it remains an ever-present reminder of who she was, and who she is now.

There was a time when winning that murder conviction in the Cindy Summer case was a point of pride for Laura Gunn and the San Diego District Attorney's Office. The people in our office felt very strongly that we needed to go forward and seek justice for the family of this murder victim and his family. And in fact, in 2007, the year of the Cindy Summer trial, Laura Gunn was named Prosecutor of the Year by the San Diego County Deputy District Attorney's Association.

Of course, that was well before new testing revealed, there was never a murder in the first place.

We reached out to Laura Gunn, hoping to get her thoughts about this case now, and to get her response to Alan Bloom's allegations of prosecutorial misconduct. She did not respond to our requests for an interview, for this podcast. Well, goes around in life, comes around in life. Somewhere, I'll get paid back. That is Bob Udell, the lawyer whose mistakes a trial

but led to having that conviction overturned.

“I didn't care what reason the judge found for giving her a new trial.”

Alan presented this motion beautifully, and he placed me in the best light he could, and I greatly appreciate that. Bob Udell is no longer an attorney. He was this barred for reasons unrelated to this case. Laura Gunn left the Prosecutor's office in 2018. She now practices public finance law in San Diego. NCIS declined our requests for comment from Special Agents to Williger and Randall.

NCIS the TV show was just renewed for its 24th season. Alan Bloom is still an attorney.

He's semi-retired now, and his famous client is living a quiet life. Which brings us back to where it all began. Cindy's summer is no longer Cindy's summer. She's been happily married for the past 13 years, and for the most part she says, free from that dark cloud of suspicion that hung over her for so long. We agreed not to use her new last name, or say where she lives now.

So we're not in Florida anymore, and we're not in California anymore.

Nope. You move back to the Midwest. Yes.

Anybody here ever recognized you? Yeah. Yeah, I have quite a few friends that recognize me. I haven't really had anybody say anything negative. Nobody's killing me up to you in the grocery store and saying you're on the road. No, no. You had to go to court to get your kids back.

“I did. I did. I had a fight for custody. How's your relationship with your kids now?”

Great. Great. I have my daughter's getting married and in May my oldest son got married and of October. Congratulations. Thank you. I've got two grandchildren. Some grand cats, grand dogs. The day I met Cindy for a catch-up stroll alongside an icy river was almost 24 years to the day since her husband Todd died. Her youngest son, the one she had with Todd, is close to the same age his father was that

faithful night. While working on this podcast, we learned his relationship with his mom remains complicated. Complicated by who Cindy was and where she was during his formative years. Complicated no doubt by the fact that his father's death certificate still lists Todd as a victim of homicide and that in the eyes of the San Diego District Attorney's office, Cindy still retains a trace of suspicion. It turns out, time does not heal all wounds. Anybody from NCIS or the

“Diaz office ever apologized to you? No. The only thing that was ever said was after my release,”

Bonnie Dumanas said that justice was served. The Diaz. I think her idea of justice and mine are two different things. I guess it's better than her saying we think she got away with murder. Yes, I do. Yeah. Does this feel like a admiration to you that they've kind of dropped it and they don't seem to want to go forward again? Yes, it no, because it's being held without prejudice. Anything they could come back if they wanted to. Right. So it's not really being exonerated.

But all the saying you don't expect them to ever go forward again? No. I don't. I mean, after the tests came back with no arsenic at home, I don't know what, I don't know what case they have. You're okay to go back to being an analyst, huh? I am. I am. Unless you got a TV show for me to do. As Cindy was walking away, she told me that preparing to meet with me and talk about this case

had been stressful because it brought up so many memories. Fortunately for her, the heart tends to enhance the good memories and time seems to have sanded off the jagged edges from the badwats. That's a good thing. And perhaps that's the only way any of us can bear the weight of the past.

Marshall Housefell Brian Drew and Meredith Cramer are audio editors.

“Molly Dorosa is associate producer. Rachel Young is field producer. Adam Gorphane is co-executive producer.”

Paul Ryan is executive producer and Liz Cole is senior executive producer.

From NBC News Audio, Sound Mixing by Rich Cutler.

I'm Craig Melford. Cheers. Cheers.

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