The Big Reach

Our exciting members get access to one of a kind of experiences, exclusive perks, and great discounts with fresh rewards every Thursday. It's like having a power-up, included with your Infinity Services. Right now, exciting members get access to Super Mario Galaxy exclusives, check the Infinity Aphrodite Tales, and watch the Super Mario Galaxy movie. Only in theaters April 1st, Exfinity, and Mad Demat, where restrictions of 5 is at Xfinity.com/membership for details. They saw one another almost every day, made eye contact and nodded in the morning, said goodbye with a smile at the end of the day.

They were more than strangers but less than friends. That's because for nearly a month, they were jurors in a murder case, and each held a ringside seat. To the biggest show in town, the one thing everyone seemed to be talking about.

“I think the prosecutors did a wonderful job.”

I think the defense attorney was a little pompous, quite frankly. Everyone that is accept them. It's like the second day told him I was on jury duty as going to be out of work for a while, they said, "Is it this case?" It's like, "No, people are not to talk to me, and I didn't talk to them about it." Now, the lawyers on both sides had made their final pitches, and the case was theirs.

The judge had given his instructions. We were just ready. I mean, the minute we got in that room, we went, "Oh good, now we can talk to each other."

It was an amazing jury, a group of wonderful people, smart, intelligent, that worked very hard to do the very best.

There was a brief moment of spontaneous chatter, before jurors got down to the business of picking a four person. Then, instead of taking on the question of guilt or innocence, they discussed the issue that seemed central to this case. Did Todd Summer die from arsenic poisoning? We needed to make sure that we all agreed on that or not, because if he didn't, then there's no case. On that, they were unanimous.

“We went through every single witness. I mean, we all had our notes. I mean, I had four notebooks.”

Some of the expert witnesses they liked. I do think he was an knowledgeable guy. Some they did not like. I kind of took what he said with the grain of salt. And some of the testimony they simply dismissed.

Because we didn't have enough, there was enough there. On a wall covered in butcher's paper, they listed lies and inconsistencies. They discussed the defendant, Cindy Summer, her behavior, her sex life, and her finances. Both before her husband died, and after. The trust fund running out was a big issue, not necessarily just for breast implants.

But for her, I mean, she liked to spend money, it was obvious. And they talked at length about the one piece of evidence. They did not have. They didn't really come up with a real solid link to her with the arsenic. No, but you can't wait arsenic anywhere.

It went on like that for two days, and then on the third day, they voted.

Was a blind vote? So super bad. Yes, yes. In this episode, you'll hear what that verdict was. The jury came in, and you couldn't tell when we were another.

You will hear the reactions of those who spent years working on this case. It proved to me one thing, you may not win a case in jury selection, but you can certainly lose it in jury selection. And you will hear how this story took a shocking turn. One that proves an old adage, one that's known to crime writers everywhere. And it is this.

There is only one plot. Things are not what they appear to be.

“I think people are always going to believe what they're going to believe, regardless of whatever anyone says to them.”

There are always people that are going to believe that the moon's way of cheese.

I'm Josh Makewitz, and this is Trace of Suspicion, a podcast from Dayline. Episode 5. The Big Reach. We can be seated. This starts now in session.

This was the moment they had all waited for. The defendant, the attorneys, the press, and those fixated by this scene. It was a moment of high drama. I'm surprised that more lawyers don't have heart attacks while they're waiting for sure for it. That is prosecutor Laura Gunn, who spoke with me shortly after the trial ended.

There was such intense scrutiny of this. My whole family was following it. I had been working on it for two years, the trial took a full month.

Judge Peter Data took his seat, and then for two excruciating minutes.

Nothing happened. We're bringing it to jury right now.

“So that's why there's a little bit of a delay.”

I was very nervous. Jerry's done eight hours. Everyone rose, Cindy Summer, her hair pulled back in a ponytail, and wearing a dark pinstriped suit. Watch the jury file in.

Her face showed no emotion. Judge Data smiled. Good morning, ladies and gentlemen of the jury. Good morning. It's my understanding that you have reached the verdict.

Sorry, Drew, number four.

Could you please hang that forward on my bailiff? You know, you can try to read jury's coming in, but I've had such bad experiences both ways with trying to guess that I don't even try to guess anymore. Burning.

“With the jury, find the defendant, Cynthia A. Summer, guilty of the crime of murder,”

of Todd Summer. Cindy stared vacantly as Judge Data continued to read from the verdict for. guilty of murder for financial gain, guilty of murder by the administration of poison. This is what Cindy said the next day,

to a reporter from NBC affiliate, KMSD. When he read it, I felt like I was going to pass out a tunnel vision, and I started sweating and anxiety attack. When her lawyer Bobby Dell heard the verdict, he slumped back in his chair as if stunned.

Later, he told reporters, "There's nothing we did that I wish we hadn't done and there's nothing we didn't do that I wish we had." A few feet away at the prosecution table. There was a palpable sense of relief.

We were very relieved that the jury had done the right thing, and seen the case as we saw it. Cindy was frog marched out of the courtroom in handcuffs. Prosecutor Laura Gun met briefly with jurors, and then with reporters, who had gathered for a press conference.

You're reacting now. Well, well, I'm so glad that Todd Summers,

family, has justice finally for the death of their son.

Gun told the reporters that even though the case against Cindy Summer was entirely circumstantial, she and others in the San Diego District Attorney's office had felt, it was their duty to take it to trial. This is a case that absolutely needed to be tried. We knew that we would be entering into a hard-fought battle,

but in the end, we had strong evidence, and we were happy with the result. I need an indication about which argument was needed, most of the jury. They didn't spend a lot of time worrying about whether the arsenic was there or not there.

They seemed to accept fairly early on that it was there. And once you accept that, all the rest of it just falls into place, because really there is nobody else. Laura Gun may well have walked away from the courthouse that day, thinking, "Case closed."

Well, Cindy Summer was not about to go away quietly. Her name was still at the top of every newscast, and would be for at least the next 48 hours. So she let it be known she was willing to talk, to tell her side of this story,

to any reporter who wanted to bring their cameras to the San Diego County Lockup. I really want to let everyone know that this really can happen to them. Innocent people go to prison for life and that's a scary thing. There were conditions, of course.

Those were fixed not by Cindy, but by her jailers. All conversations would have to be done through a plexiglass window via a phone hookup, and the jailhouse staff would be listening in. Cindy was fine with all of that. I didn't think that they would ever come back with a guilty verdict.

I don't know how they did.

“I think that they just took NCIS's word and said, "You know well,”

they've investigated for this long, and they must be right." As for these salacious slurry, shockful of her personal behavior after her husband's death, Cindy told reporters, "That had been her way of coping. A manifestation of her desire to avoid dealing with some monolithic grief."

Until you're in someone's shoes, you don't know how you would respond. I sort of drinking, and that was my priority. I didn't want to be in the house. I didn't have to dive there, and I wanted to be as far away as possible,

I don't want to be sober right now.

“Coverage of first the trial, and then Cindy's jailhouse charm offensive,”

didn't have an impact on public opinion. Juror said shortly after they delivered their verdict,

some began hearing critical sniping from friends and neighbors.

The comments on social media were brutal. This has really been a horrible experience, and I hate to say that because I was very excited to do it. I thought, "You know, this is my civic duty." That is Wendy Altam. One of the jurors I spoke with after the trial.

It really makes me kind of sad the way that the jury's been treated, so it's kind of like, I feel like we've been convicted, and all we did was our best, you know. You taught me the public reaction after the jury.

Yes, and it was so surprising to all of us.

I mean, I was completely shocked when they couldn't believe our verdict, and I was like, "What?" Prosecutor Laura Gunn was hearing some of that same criticism. Here she is speaking at a press conference weeks after the trial ended. This is a case that has generated a lot of attention.

“I think some people regard the defendant as somebody who's sympathetic.”

She's a mother, she's a female, and it's not uncommon in a case like this to have people who disagree with the verdict whatever it happens to be. Even Judge Dentner heard from people who had watched the trial on TV and wanted to weigh in. Since the verdict in this case, I've received about 50 letters in emails.

That's Judge Dentner. These are essentially letters and emails encouraging me to do one thing or the other one with regard to the verdict or the rest of the verdict. It was during those days of public pushback that Cindy Summer decided to fire her lawyer Bob Udell.

After all, it had been his blunder that opened the door and allowed the prosecutor to use Cindy's private life as almost corporal punishment in front of the jury. Looking back, Cindy told me she knew Bob Udell was not the guy she wanted working to overturn her newly minted conviction.

I just thought I'm going to fight for 20 years before I can even see daylight again. I'm going to just die fighting trying to get out of here, knowing that I didn't do anything. So six weeks after her conviction, Cindy's family hired a prominent San Diego criminal attorney named Alan Blue.

“I think this case should have been about facts.”

That's what a trial is supposed to be. That is the voice of Alan Blue. This case should be about evidence before you're going to send somebody to prison for the rest of their lives. You should have facts to support it.

Blue told Cindy she had a strong case and should have been acquitted. If he'd handled the case from the beginning he said, she would have been acquitted. What did Mr. Udell not do that he should have done? He didn't find out about the tremendous holes that existed in the prosecution's case as a related to the evidence here, which has to do with the arsenic testing.

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.

What Cindy needed said Blue was a new trial, a doover in golf, a molligan. And Blue knew getting a court to throw out a conviction is a lot harder than finding a lost ball in some high weeds. However, it is not impossible. Blue had an idea that might work, but it would require the man he just replaced to make an enormous sacrifice. Whatever happens with my reputation will happen.

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He might have thought he'd be able to relax.

“Maybe take a long walk on the beach and let the south floor the sunshine wash over him.”

He did not. You Dell had a hangover that would not quit, a trial hangover that is. He simply could not stop thinking about the summer case, thinking about the things he did and did not do. Most of all, he could not stop thinking about his now former client Cindy summer. She was very likely to spend the rest of her life in prison.

To you Dell, the guilt was not hers. It was his. I've had a hole in my heart.

I haven't been paying attention to my wife, my children, my clients, my practice.

I sat down with Bob you Dell a few months after the trial ended. You told me you were trouble sleeping? I've had trouble sleeping.

“It's ready today to give up the practice of law and go sell donuts.”

He acknowledged he had made plenty of mistakes in the trial. And Bob told me he'd felt like a fish out of water in California. He wasn't familiar with the evidence code. He mispronounced the name of a town and he thought the jurors didn't like it. According to online comments made by some of the jurors, he was right about that.

They thought I was an animated jerk. They commented upon my glasses and my faces that I make. Jury hated me, they didn't want to hear a word that I had to say and blew us off. Slumped in the courtroom. You Dell had been bewildered at the trial's outcome.

There had been not one scrap of evidence presented that late Cindy to arsenic. And yet, and yet. The errors I made were because I was so sure she was not guilty. And was so convinced that Jury would see it. That there were things I should have been done that I didn't do.

I tried this case with my heart instead of my head. So that was where Bob Udell's head was when one day his phone rang. On the other end of the line was Cindy's new lawyer, Alan Bluill. He wanted Udell's help in getting Cindy a new trial. He had questions, "Why didn't you push back harder on the arsenic evidence?"

Ask for DNA testing to verify that the tissues tested were actually taught summers. And why didn't you point out holes in the chain of custody, where the tissues might have become lost or contaminated? Alan Bluill. Bob Udell had gone to the point. He would have found out that these huge holes in the testing process, left it situations where you don't even know where the tissues had been.

Bob Udell had no good answers. And over time, the two lawyers recognized the obvious.

“The best way to get Cindy a new trial was to argue in their motion that she had received a subpar defense.”

In effect, if assistance of counsel is the legal jargon for that. Her first attorney was so convinced of her innocence. It was almost as if he felt that he was so sure that she wouldn't be convicted, that he failed to do some of the things that should have been done. Bob Udell did not have to think twice.

Yes, he said, "Count me in." Whatever happens with my reputation will happen. How difficult was it for you to essentially argue, I didn't do a good job. I should have done more.

Well, it's always easy to tell the truth.

I make some errors. The new strategy was, and it's hard to overstate this, a very big reach. Quote, her attorney did a bad job, unquote, is almost never a strong enough argument to win in an appellate court. That was only one approach Alan Bloom was prepared to take. Shortly after the trial ended, some of the jurors and alternates turned on each other,

leveling accusations of improper behavior both inside and outside of the jury rule. I know that one alternate juror who was on the case the whole time did not deliberate has come forward to say that she heard two of the jurors discussing some parts about the case

If true, that made Bloom's case a little stronger, because jurors are specifically told by judges not to discuss cases until it's time to deliberate. And that was not the only disturbing allegation of misconduct by a juror.

And then there was one juror who was a retired police officer who never revealed anybody that he had learned

that Cindy had fought extradition in Florida. And his comment to this alternate juror right after the case was over, they're literally walking away from the courtroom. So it's not as if he could have gotten this information after his job was over.

“He said, and did you know that she fought extradition?”

And that delayed it four months. And if you were really innocent, then why wouldn't you have come back to come back to San Diego right away to fight the case? And that was not ever introduced of trial. That's correct. It was not introduced to trial and for a reason.

The reason is that when she was in Florida, the lawyer there, the lawyer looked at this case in Florida and said, this case is so empty, is so full of holes.

I think that we can actually attempt to convince the San Diego people not to prosecute you at all.

So that's what she was doing. That's what she was doing. Let's assume that what the alternate juror says is absolutely true. What's the significance? Well, the significance is that the jurors didn't do what they should have done.

If that's true, then the jurors deliberated and talked about the evidence when they shouldn't have. In one case, at least one case, one juror, he considered evidence that he shouldn't have. Is that enough to get a new trial? Maybe. Maybe.

The jurors I talked with back then said they saw nothing improper taking place in the jury room. When the earlier alternates said that one of the jurors was arguing points of the case before the case was over.

“I think that the case got talked about before.”

Yeah. Then happened. That's the voice of juror Linda Gadoi. Then happened. We talked about everything.

Oh, gosh, everything. Our children, the weather, trips, clothes, shoes, shopping. Did the retire police officer ever talk to you guys about the case before deliberations began? No. Didn't say that Cindy had had to be extradited from Florida.

No.

The first time I heard about that was an email he sent long after the two weeks after the trial he sent an email.

And that's when he brought it up. One way thing about the other accusations. I mean, I found them extremely hurtful because I didn't talk to anybody. Hurtful or not if there was even a teaspoon of truth in those allegations. Alan Bloom thought he might have a shot at getting Cindy a new trial.

Finally, in mid November 2007, Alan Bloom and Cindy were side by side. Back in Judge Dennis Court, this time for a dismissal motion based on jury misconduct.

“During the trial itself, did you at any time read or watch any new stories about the summer case or look the case up on the internet?”

I didn't. That is prosecutor Laura Gun questioning the retired police officer who had served as juror number 10. Did you ever discuss the case with your fellow jurors during breaks or out in the hallways? No, man. Did you ever say anything about the defendant fighting for extradition?

I know I did not. How old is certain are you about that? I'm 100% certain. The juror told the court he did not learn of Cindy's extradition. One of these extradition fights until weeks after the trial was over.

It was only then he said that he mentioned it in an email to the other jurors. Here he is reading that email in the court hearing. If anyone went back and read any of the news accounts with this incident, you would have discovered Cindy fought extradition to California from Florida. This had about another four months in custody.

If she really wanted to tell the world she didn't do this, she would have waved extradition and caught the next flight to San Diego. After that, Judge Detta made his ruling. He denied Alan Bloom's motion for a new trial on the grounds of juror misconduct. It was one more courtroom defeat for Cindy Summer, who went straight back to the lockup. All Bloom had left now.

Was a hearing on his motion for a new trial on the grounds that Bob you doubt had been an ineffective advocate for Cindy. The big reach. Maybe the biggest. With her formal sentencing now less than two weeks away. Time was running out.

Hey guys, Willie Geist here reminding you to check out the Sunday Sit Down podcast.

Some of the Tony talk around it and her road from the stage to Glee and now back again.

You can get our conversation now for free wherever you can download your podcasts. When Bob you doubt returned to San Diego in late November 2007 for Cindy's formal sentencing, he was by his own admission, a broken man. His former client was looking at a life sentence. Bob was there to try to stop the sentencing.

By appearing in support of a last-ditch motion to get Cindy a new trial. His job to tell Judge Data he had been an incompetent lawyer. If Cindy were guilty, it might be a different story, but she's not. She didn't kill Todd.

“Is it humiliating to stand in a court rule and say, I screwed up?”

It's not humiliating. I've tried over a hundred cases, so I screwed up one of them. Unfortunately it screwed up one with a client with innocent. When the time came, Bob you doubt took the stand and swallowed a generous portion of humble pie without any sugar coating. He confessed his errors and said Cindy had deserved a better defense than the one he provided.

I was in the courtroom that day, not because I thought Cindy and Alan Bloom would win that motion. I knew they had pretty much zero chance of that. I was there because many if not all the participants in this case would be in the same room at the same time. And many had not yet agreed to appear on date line with me. I was there to persuade them to change that.

I wore a nice suit and tie I remember. I was trying to look presentable.

“I sat three or four rows back in the gallery, waiting for this to be over, so I could start introducing myself to the people we were trying to book for date line.”

Then the judge started speaking, and I was waiting to hear him say the motion for a new trial was denied. I listened, and I thought to myself, "Wow, if I didn't know better, I would think he just threw out Cindy's conviction and ordered a new trial." Of course I knew I had to be wrong. Then, I glanced over at the prosecution table.

Their mouths were hanging open in literal astonishment, like someone who would won the lottery or in this case, like someone who would want it, and then lost the ticket in a win store. And then just like that, the judge banged his gavel, and Cindy's summer's murder conviction was vacated. A new trial ordered. Alan Bloom was smiling. Cindy looked stunned, at least for the instead I saw her face.

She was returned to custody, pending trial number two. That moment is crystal clear in my mind.

I had never seen anything like it before or since.

Twenty years later, it's Cindy's memory. That's a little foggy.

“I don't remember anything else about those things.”

I look over you. And you are eyebrows up. And I look over at the prosecution. Anything was said, just to look at dread. They looked like they'd been tased.

They looked stunned. Yeah. And then the hearing ended. And they were furious. Oh, I bet.

On the other end, Bob you down, and Alan Bloom, were grinning from ear to ear.

We're finally outside of a whole, and I'm breathing fresh air.

The fact that she has a second chance is something which is very good. Not usually, not usually. How'd you do it? Well, this is a very unique case. As the judge said, the evidence in this case that the prosecution has is very thin, razor thin.

For Bob you down, that ruling of a new trial for Cindy felt as if a huge weight had been lifted. Judge status decision may have restored my faith in the criminal justice system. And maybe I will continue practicing. And your faith in yourself, maybe? I've never doubted that.

I'm a good lawyer in the sense that I care.

I'm certainly not the most eloquent lawyer.

“And I have mannerisms that some jurors just don't like.”

But no, I haven't lost any faith in my ability. I tried my hardest. I just got too close to the case. But now she's got another chance. Absolutely.

I'd kill anything that mattered. Over the next few months, attorneys for Cindy Summer and the San Diego District Attorney's Office dug into those old files. Preparing for a round two.

“It was then that an astonishing discovery was made.”

One that would ultimately turn this rematch into no magic at all.

Next time, I happen to be standing on the number 17th hole of Babel golf course. And I get a call from the court clerk saying that Judge is going to conduct a hearing in 30 minutes. Do I want to be present? I knew all along that the testing was wrong. I was just waiting for that to come out.

And I 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 it. It's funny when Bart Simpson does it.

“But when you're holding somebody's life in your hand,”

it's not about stealing a cookie. This podcast is a production of Dateline and NBC News. Tim Beechon is the producer. Marshall Housefell Brian Drew and Meredith Kramer are audio editors. Molly Darosa 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.

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