Smoke and Mirrors

- Friday night, on daydeline.

- Stop, stop. - No ordinary victim. - Key, love the opportunity to make the world a better place. - No ordinary crime.

“I think murder is always the last thing you expect.”

- I kept thinking when you have the wrong person. - Murder in San Francisco. - Daydeline, Friday, 9/8 Central, only on NBC. - She could feel their eyes on her. She could smell their contempt,

even though she could not hear their thoughts. The taunts and cat calls that greeted Cindy Summer

that first week in the last Colleen

as women's detention center in San Diego were unrelenting. - Everybody knew who I was. I was very high profile. - In a lock-up full of accused criminals, Cindy Summer was not just a new fish.

She was a celebrity, a husband killer, the arsenic assassin. - Even like the homeless cross that came in from the street knew who I was, I did. All the deputies knew who I was.

- And her notoriety was far and wide.

“Every week brought a new stack of mail, letters from strangers.”

- Summering encouragement, others, condemnation. - Yeah, and getting letters from around the country hate letters. They're watching TV and your story comes on the news four times a day. - It was February 19th, 2002, prosecutors say Summer was living with her husband,

a 23-year-old U.S. Marine. - No doubt there were times during those spring days of 2006. - When Cindy Summer felt like screaming, venting, crying even. She did not. The advice she had received from that deputy back in Florida

had taken hold, do not engage, do not cry,

keep a stiff upper lip, never let them see you sweat.

- If I compartmentalized before, oh, I really could now. So I put my nose down, I focused on my case. I read books, I did Sudoku, I kept my nose clean. - For 10 months, she gritted out every day, waiting for the exoneration she knew was coming.

Once a jury heard the evidence in her case. - Yeah, there was no evidence against me. There was nothing there. - In this episode, you will hear about what evidence there was. - No one thing is ever enough in a circumstantial evidence murder case.

- Evidence, the prosecution had. - There are lethal levels of arsenic and otomers' tissues. - Evidence, the prosecution ignored.

- The premier expert in this kind of gen arsenic

told the government, take a walk, you got it, braw. - And you will hear about a courtroom misstep that allowed a murder trial to become a public airing of so much dirty laundry. - The judge ruled that I had opened the door to it.

And that's the sin I confessed to today in that era. - I'm Josh Maykowitz, and this is trace of suspicion upon cast from day one. - Episode 4, Smoke and Mirrors. - Shortly after the arrest of Cindy Summer,

NCIS Special Agent Rob Terwiliger was reassigned. Somebody else has to take over. - Exactly. - You're telling me this is not like the TV show. - No, you don't stay in one place for very long.

There is a planning process that goes on. And so when the case agent, the new case agent opens it up, there is an investigate plan. These are the things based on what the old case agent saw that have been done. And there are things, there's a list of things that still need to be done.

The agent who inherited the Cindy Summer file from Terwiliger was Special Agent Rick Wendell himself, a 16-year Marine Corps veteran. Wendell was not exactly coming into the case cold. Remember, he was the NCIS agent, who had interviewed Cindy's ex-husband, Dan Peace.

“- When I talked to her husband, I asked him what kind of shows did she watch?”

I asked him specifically was it like forensic files, new detectives, did she watch these type of things? - That was not a question out of thin air. Killers have been known to draw tips and inspiration from TV crime programs like Dayton and like NCIS.

Wendell wondered if there might be something there that would make their circumstantial case that much stronger. - His response to me was, now Cindy was a type that like to watch.

I don't know too when I'll be able to, you know, friends, Melrose Place,

he gave me a list of shows.

“- Wendell's ears perked up when he heard Melrose Place.”

- Melrose Place was probably the most vindictive show that there could be some type of nexus here. So we're doing internet query and, you know, it turns out that there's two poisoning episodes that were spousal poisoning episodes.

- In the end, the investigator decided those TV episodes had little in common with the summer case. So he dropped it. - It's a circumstantial case. It's, you know, it was definitely no smoking gun.

- The fact was, agents before Wendell had also come up empty in the search for that same metaphorical gun. And then one day, the full ray. As agent Wendell listened to the woman on the other end, he might well have imagined he could smell the scent of gun smoke.

She came across as very genuine, she was very certain about what she saw that night. - The woman on the phone was Susan Beach. She was the woman a frantic Cindy called on the night time summer dot.

Susan had been following the news of Cindy's arrest. And she told the investigator, "She knew a few things about the case that he needed to hear." - She said Cindy called, "Permix already on the way.

Please come here to watch my children.

I want to go to the hospital with time."

- Okay, that makes sense. - Susan says she gathers up the kids. They get in the car. They drive to Cindy's house. - When it took her five to ten minutes to get there.

- Not that far away.

“- She should not have beat the first responders.”

- But she did. - She says she arrives there. And it strikes her odd that there is no police cars. There is no ambulance. There is no fire trucks.

- Suggesting to you that Cindy called Susan to watch her kids before she called my one-one? - I think that's a safe assumption. - Was it possible the investigator wondered as he hung up the phone?

That Todd Summer had collapsed, long before Cindy ever called 911. - I don't want you to listen. - I don't want you to listen. - I don't want you to listen.

- I don't want you to listen. - I don't want you to listen. - I don't want you to listen. - I don't want you to listen. - I don't want you to listen.

- I don't want you to listen.

- I don't want you to listen. - I don't want you to listen. - I don't want you to listen. - I don't want you to listen. - I don't want you to listen.

- I don't want you to listen. - I don't want you to listen. - I don't want you to listen.

- I don't want you to listen.

- I don't want you to listen. - I don't want you to listen. - I don't want you to listen. - I don't want you to listen. - I don't want you to listen.

- I don't want you to listen.

“- I mean, notice Mrs. Beach is to you not indicative of anything.”

- Not at all. - And you believe she was there. - I didn't believe she was there. - The big question was, what a jury believed Susan Beach beat the first responders to the summer house that night.

What they buy a theory without proof. Now that is a question you might be asking at several points in this story. - Most investigators will tell you, quote,

"You never know what a jury will do," unquote.

I've heard that sentiment a lot. It's kind of law enforcement boilerplate. And across town, prosecutors were also unsure of how to proceed as they tried to decide what shape their case against Cindy Summer would take a trial. - Hey guys, Willie Geist here.

We're celebrating 10 years of Sunday today by hosting a very special Sunday sit-down live event in our guest as one of the biggest stars on the planet, Ryan Reynolds. We're taking our conversation to the stage in front of an audience of you

“for one night only at city winery in New York on April 7th”

and intimate in-person evening. I promise you won't want to miss. Take its or limit it so grab yours now at today.com. - The blonde woman in the blue power suit sat quietly at the prosecution table, reading through her prepared remarks.

A few feet away sat the accused, a woman about to be tried for murder. The prosecutor knew everything about that woman. After all, she had spent years immersed in that woman's life. She knew the evidence and she knew the science.

She knew this case backwards and forwards. She knew what every expert would say. She knew how the defense would respond. Yes, she might have thought to herself as the judge took his seat. I've got this.

Once the formalities were done, the blonde woman rose to speak. In February of 2002, Sergeant Todd Summer,

“a 23-year-old active duty Marine, was murdered.”

Those were the first words San Diego County deputy district attorney Laura Gunn said to the jury that had been seated and asked to decide. Cindy Summer's fate. Leathal levels of arsenic were found in Todd Summer's kidneys and liver. The evidence she said would show that only one person benefited financially

from Todd's death. And that was his wife Cindy. Only one person could have poisoned him. And that was his wife Cindy. And only one person had behaved suspiciously in the hours after he died. Again, she said that was Cindy.

As Todd was being taken out of the bedroom on a gurney, she said, "We joked about his SGLI policy,

but I never thought I'd actually see it."

His life insurance. Yes, then when she got to the hospital, she approached his Sergeant Major at the time and said, "Do I have to get back his real-nessment bonus?" And that was the first question out of her mouth.

So that was a second inquiry about money. She's not the first person to begin worrying about money immediately after the death of a spouse. What about this? Looks suspicious.

Well, we didn't look at anything in isolation. And certainly the way that she behaved after he died was something that raised suspicion. Ah, yes, the way she behaved.

The prosecutor knew she had to be careful.

The judge and rule before the trial started.

That lifestyle evidence. That is, talk of Cindy's curousing and sleeping around in the months after Todd died was irrelevant. And off limits. Given those constraints,

the prosecutor was like a high stakes poker player holding two pair. She had a hand that was good enough to win. But it was close. And even then, everything else would have to go her way. Clearly, it's not a slam dunk case.

But in the end, with everything taken together, it absolutely was a case that we thought, "We need to try to pursue justice for this young Marine and his family." How big a problem was it that you didn't have of controlled, searchable crime scene?

That was one weakness in the case.

“Was that we didn't have an on-the-spot full crime scene investigation?”

What the prosecution did have was a parade of first responders

who told the jury the things they did, saw and heard the night Todd summer died. The prosecution also called Susan Beach who told her story about arriving before first responders did.

She was not challenged by the defense on cross. Is she done? Yes, sir. Do you get any of you for the questions? Nothing, sir.

The next building block in the prosecution's case focused on motive. The summer family prosecutor gun told the jury was broke. They spent far more than they earned. And had, in fact, fully depleted Todd's $30,000 trust fund two weeks before he died.

We felt like we had strong motive evidence in this particular case. We had somebody who liked to spend didn't have very much money whose nest egg had just run out who knew that divorce was not going to pay her well

for her four kids and not going to put her in a good situation. Who stood to gain a great deal financially by this murder and who made several comments after the fact about the money and her concerns about the money. To support that theory, the prosecutor called an accountant to the stand

who had carefully gone over the summer family finances. I analyzed bank records belonging to Todd and Cynthia Summers around the time of Todd's death before and after. That's forensic accountant April Reel.

“So some of the things that you looked at were the couple's bank records?”

That's correct. Did you look at credit reports? I did. A chart was then shown to the jury, which listed the balance as in each of the summer accounts.

In reading them off, the account and started with Todd's trust fund account. That he advanced funds and it had zero balance as a February 1802. The reading federal credit union savings account had five dollars and 24 cents. The reading federal credit union checking account had one dollar and ninety three cents.

And the bank of America checking accounts had eight hundred and one dollars and seventy five cents. That was the financial picture on the day Todd died. Just ten days earlier on February 8th. The outlook had been even more grim.

Todd and Cindy then had only two hundred and eighty dollars to their name. That day was significant.

Not only because that was the day Todd first complained of being sick after eating a gas station egg roll.

As the prosecutor pointed out, that was also the same day medical record showed Cindy had consulted with a plastic surgeon about getting breast implants. A procedure that was going to cost more than five thousand dollars. Where were she going to get that money?

And why did she go at a time when Todd was gone all day in El Centro on a training exercise? Suggesting to you that she wanted to keep that visit a secret from him. It appears so. That was key the prosecutor argued. Because the day before Cindy summer was arrested,

investigators say she told them, Todd had been in favor of her getting implants.

“That's how Todd felt about the breast implants and she said,”

"Oh, he's all for it. He came with me to the consultation." That's NCIS special agent Rob Terwilliger, one of the investigators who had questioned Cindy before her arrest. That's not true. And that's not true because her appointment was at 0930 or somewhere in that time frame

On the morning of Friday, February 8th.

And you know exactly what Todd was that day.

“According to the Marines that were in his squadron, they were with him.”

And he did not get home until late in the evening. And at no point during that interview, did she tell us, "Well, I went to multiple consultations." She said he went to me with a consultation to that consultation in Lohuea, not knowing that we had already reviewed her medical record

and knew that Todd summer could not be at two places at one time. Gotcha. For the investigators who had surprised Cindy at her workplace in Florida nearly four years after Todd's death, that counted as a lie, an intent to deceive.

Not an oversight, not a misremembering.

A lie. And the fact that Cindy later used some of the money

from Todd's life insurance policy to pay for those new implants. Well, that just bolstered the financial motive theory. When she was interviewed in Florida,

“we asked her how she dealt with Todd's death.”

And she said, "Well, I got these and pointed to a breast." The heart and soul of the prosecution's case was the lab analysis of Todd's summer's tissues that had been done more than a year after he died. A potential danger is out for any lawyer

hoping to hold a jury's attention. I knew that when we got to that part of the case, it was going to get difficult and it was going to be, you know, possible for somebody to get bogged down in it. According to the analysis, Todd's summer had died

within 200 times the normal range of arsenic in his kidney, and more than a thousand times the normal amount in his liver. In the week and a half before Todd died, he suffered from vomiting, nausea, diarrhea,

“all symptoms that are consistent with acute arsenic poisoning.”

In this part of the trial, it was scientists who took center stage. The prosecution presented witnesses who talked about the different kinds of arsenic, which kinds are toxic, and which are not. Others spoke in numbing detail about the chain of custody

regarding Todd's summer's tissues, and how they were preserved, prepared for testing, and analyzed. A little part of the tissue is taken, a scut, and then it's wade. That is Todd or Todd or off, the chemists who tested Todd's summer's tissues. The tissue is digested in nitric acid,

and the resulting solution is analyzed by inductive the couple of plasma mass spectrometer to get the concentrations of the various metals. According to the scientists from the Armed Forces Institute of Pathology, the lab that did the testing, every test came out the same.

Consistently high levels of arsenic in Todd's liver and kidney. We have a guy whose tissues were full of lethal levels of arsenic, and poisoning is kind of by definition of crime that requires some access, and so we looked into his movements that week, and really there weren't any other adults that had both a financial motive

and consistent access to him in that regard. And then unlike other parts of the prosecution's case, where the jury could be shown facts, financial records, and solid scientific results, this section was where the case could turn

on the prosecutor's ability to sculpt smoke. Since there was no way to show the jury how, when or where, and or where Cindy's summer obtained the poison that killed her husband, the prosecutor needed to convince them that it happened the way she theorized it happened, some way, somehow.

Where do you think she got the arsenic? There's really no way to say. There are so many places where she could have gotten arsenic, and we know that she was an internet user. We know that she was an e-bay client,

but we don't know everything about her computer use. That is because the computer, Cindy owned at the time of her husband's death, was long gone by the time investigators got around to classify that death as a homicide. That did not stop the prosecutor from arguing, Cindy could have bought arsenic on the internet.

arsenic is getable on the internet. It's getable from various other sources, and there really isn't any way to say. Anything is possible in terms of where she could have gotten it.

Laura Gunn was certainly not the first prosecutor to build a case on an airy foundation of circumstance,

Essentially asking the jury,

who else, but the accused, could have done this.

After presenting more than 40 witnesses over the first two weeks of this trial,

that was the question the prosecutor wanted the jury to ponder. The responsibility for defending Cindy's summer, rested on the narrow shoulders of Bob Eudel, a Florida-based attorney hired by Cindy's mom. Eudel was one of those guys where it's hard to tell where their beard stopped

and their hairline began. He kept a pair of granting glasses perpetually perched on the end of his nose.

“Did you build this, would you confess why I put on any evidence?”

Yes, chef. Eudel's first witness for the defense was his client, Cindy Summer. He'd called with the penalty for whom he was summoned. Thank you, solemnly state that the Eudel's, he showed the link to that, and showing the truth of what took the love he had so well through that.

Cindy wore a black pantsuit.

She was also sporting a shinner under her right eye, that nearly matched her purple blouse. Cindy would later say she got the black eye, from falling out of her bunk at the jail. We're going to take you back to the night of February 17, 2002.

Eudel started by asking Cindy to talk about the night Todd died. We were just sitting on the bed getting ready for bed, and he said that his heart had fluttered, and I asked him if he was okay, and if we needed to go to the hospital,

and he said that he was okay. For the next 55 minutes, Cindy told the story of her life with Todd, from the moment they met,

till their last moments together on the night he died.

It was a credible performance. One her lawyer believed showed Cindy to be authentic, likable, and completely incapable of murder. Cindy's the all-American girl. That's Cindy's lawyer, Bob Eudel.

When Cindy grew up, her golden life was to be the wife of a marine. That's what Cindy wanted to do in life, and she married a marine, and she didn't know all of a sudden decide to kill that marine. Cindy summers the kind of girl that when they play the national anthem,

she cries. Oh, there were some tender moments all right, like when Cindy spoke of getting a tattoo memorial to Todd on her arm, just weeks after he died, the tattoo was a cross, just like one Todd had wanted,

and it included two dates. The date of his birth when the date of his death. Correct.

“Okay, and was that put on there when you put the tattoo on?”

Yes. Then there was a touching account of how Cindy had frequently called her dead husband's cell phone. Why were you calling Todd cell phone? Just the hair is blaze. Unfortunately for Cindy, those stories lost a bit of their emotional punch.

When she had to explain why she had also memorialized two other man on the same tattoo she had gotten for Todd, and why phone records show those sentimental calls to her dead husband cell phone were being returned. Are you sure you didn't loan Todd's phone to somebody?

Did he were calling you back? Didn't he had to explain that well, you know? She had loaned that phone to her daughter. And there are times that she probably called him back. It was an active phone in the house.

It was a rocky road for the defense, but Cindy was game. She spoke frankly about the family's money struggles.

“During the marriage, you guys lived over your head, correct?”

Every meal to her family does, yes. And she defended her decision to use part of Todd's life insurance payout to cover her breast augmentation. Saying it was something Todd had wanted her to do. In fact, she said, Todd had gone with her to several consultations.

Not just the one that the investigators had questioned her in Florida, had focused on. Remember, no recording of that conversation exists. You told them that Todd was with you when you went to a doctor to get consultation.

I had been to more than one consultation. I didn't just find one doctor and go there. I'm interested. Then Bob Yodell called a series of character witnesses to bolster his claim that Cindy had been a loving wife

and a beautiful mother. And it was right then when this happened.

Okay, we put that in.

It's the sound of a door opening.

“Legally, that refers to one side giving the other”

an unexpected opportunity to introduce testimony or evidence that had previously been banned. It happened when Cindy's mother took the stand. She told the jury what a grieving widow Cindy had been after Todd's death. I walked into their bedroom.

And she was in bed. And she was carrying up in her feet. And she was just sobbing and controlling. Well, to prosecute her Laura Gun, that testimony probably sounded like a very large door opening.

If the defense was going to present Cindy to the jury as a grieving widow, then the prosecution had an opportunity to rot. You had to see that comment. Absolutely, we saw it coming.

And we knew it was a problem. And we tried to keep it out. And I thought I had kept it out.

“And the judge ruled that no, I had opened the door to it.”

And that's a sin I confessed to today, making that era. I still think I'm right. I still think the judge was wrong, allowing that into evidence. Suddenly, all of Cindy's indiscretions

as the merry widow were fair game. And it got blown out of proportion, breast implants, parties, sex, must be guilty. And like top 40 radio on Memorial Day weekend, the hits just kept coming.

The prosecution pointed out the two weeks before Todd Summer died. Cindy had used her credit card to access an adult single's dating site. The significance of that is certainly open to debate on both sides.

Prosecutor Laura Gun. But one has to question why somebody would be an adult single's dating website if one was in the happy marriage that was portrayed by the defense in this case? The optics to say the least were bad.

We understood how it doesn't look good. Now, on the substance of the case, Bobudale definitely had his moments.

He countered the claim that Susan Beach had beaten first responders

to the Summer home on the night. God collapsed by saving full logs from that night. Something the prosecution did not do. According to those phone logs, Cindy called Susan to come watch the kids

at 143. That would be minutes after paramedics arrived.

“Yes, I think that's what EMS has already been there, correct?”

As for the question at the center of the prosecution case, the allegation that Cindy Summer had somehow poisoned her husband with arsenic. Will the defense call their star witness? Dr. Alphonse Polklus.

Please tell the jury your present occupation. I'm a forensic toxicologist and a professor at Virginia Commonwealth University School of Medicine. Polklus, you will remember,

was the arsenic poisoning expert in CIA asked first consulted

when they got the results from lab tests done on Todd Summers' tissues. Those lab tests had shown more than a thousand times the expected amount of arsenic in Todd's liver. Polklus says he told the NCIS investigator who met with him that those tests did not make sense

and that there must have been some kind of mistake. Did that concern you asked you whether or not Sergeant Summer had been poisoned with arsenic? It concerned me whether it was poison, it concerned me what the world was going on and who did this test.

Did you tell them that? Yes. According to Dr. Polklus, the problem was the test results showed very high concentrations in some tissues

and normal levels in others. That he said is not the way arsenic is processed in the human body. Whatever you want to analyze, arsenic's carried everywhere through the body and goes into all the tissues.

Furthermore, Dr. Polklus said he told those investigators from NCIS that anyone exposed to those astronomical levels of arsenic would be very sick. And Todd's medical records from the week before he died

said Dr. Polklus did not show that.

I've come to understand that after that visit to the hospital

Tuesday, he went to work Wednesday, went to work Thursday, went to work Friday that he went to some amusement park on Saturday

“and then he suddenly died Saturday night.”

It makes absolutely no sense that that's acute arsenic. Dr. Polklus said he told the NCIS investigators all of that. And the result?

He never heard from any of them again.

When it came time for closing arguments, both the defense and the prosecution leaned passionately into points, neither could prove. Defense attorney Bob Udell argued there was no murder.

Lab tests showing lethal levels of arsenic and Todd's numbers tissues were bogus he said. So wildly out of whack that the sample set out for testing must have somehow been contaminated.

“If there's no arsenic, there's no murder.”

That's that. There isn't even any arsenic. For her part, prosecutor Laura Guntel the jury, Todd's son was clearly a case of murder and that his wife, Cindy, was the only person on earth who could have given him the arsenic that killed him.

It's a fact that nobody else had access to Todd's summer at the time

that he first started to get sick

and shows signs of being poisoned. After 18 days of testimony, the jury of seven women and five men went to a secluded room to decide which of those arguments represented the truth.

Next time, they thought I was an animated jerk. They commented upon my glasses and faces that I make. Jury hated me. Everybody was, you know, like,

they couldn't believe our verdict

and I mean, I was like, what?

One alternate juror has come forward to say that she heard two of the jurors discussing some parts about the case when they shouldn't have been. Since, for that verdict in this case,

I've received wildly 50 letters and emails. These are encouraging me to do one thing or the other with regard to the verdict. You know, a whole verdict for the gross to my verdict. This podcast is a production of date line

and NBC news. Tim Beacham is the producer. Marshall Housefell, Brian Drew, and Meredith Kramer are audio editors. Molly Dorosa is associate producer.

Rachel Young is field producer. Adam Gourphane 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. This is a new series. Friday night on Date Line. No ordinary victim. He loved the opportunity to make the world a better place.

No ordinary crime.

“I think murder is always the last thing you expect.”

I kept thinking when you have the wrong person. Murder in San Francisco. Date Line Friday, 9/8 Central, only on NBC.

Transcript

- Friday night, on daydeline.

I don't know too when I'll be able to, you know, friends, Melrose Place,

- I don't want you to listen.

The prosecutor knew she had to be careful.

On the morning of Friday, February 8th.

Essentially asking the jury,

Okay, we put that in.

I've come to understand that after that visit to the hospital

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