Cynthia Sommer suing Feds and DA

[dref99]

http://insession.blogs.cnn.com/2009/09/24/freed-widow-of-marine-suing-feds-and-d-a/

Sommer is suing the United States of America, three NCIS Special Agents Rob Terwilliger, Rick Rendon, and Mark Ridley, the Naval Medical Center in San Diego County, the Medical Examiner’s Office of San Diego County, Glenn N. Wagner (chief medical examiner in San Diego), the San Diego District Attorney’s Office, District Attorney Bonnie Dumanis and Deputy District Attorney Laura Gunn who handled the trial in 2007

Well past time for that dissmissal with prejudice (imo)

apologies if this has been posted elsewhere, I couldn't find another thread

[pammi2]

http://www.signonsandiego.com/news/metro/images/090924sommercomplaint.pdf

[*Pia]

Hopefully we will know in a short while if the charges have been dismissed with prejudice or not...I pray Judge Einhorn does the right thing.

[*Pia]

Motion denied...more info coming later...this stinks!

[*Pia]

Just from what I got from Kanzz on the phone...Looks like Judge Einhorn says that the court doesn't have the authority to dismiss with prejudice but doesn't see any way that she will ever be charged again. Not only that it seems as if he said something like he thinks double jeopardy may apply. Not sure how, but hoping to get a copy of the motion to see the exact wording.

Mr Bloom says this is the end of this part but the civil suit will continue.

Everyone is taking it very well. I think I am taking it worse than they are.

[RootBeer]

Hi hope Cindy becomes a very rich woman. jmo

[pammi2]

I agree, this stinks.

If the court doesn't have the authority to dismiss with prejudice, then who does? And didn't the court know that all along? Why did they string them along all this time?

Has the death certificate ever been changed to reflect Reality?

I'm glad she has all her kids back.

dref99 and Pia, thanks for the info. RootBeer, I hope she gets rich too.

[*Pia]

Pammi the last time I heard, the death certificate still lists the COD 'homicide by arsenic'. Glenn Wagner refuses to change it although during the trial he said whenever evidence presented itself that changed the cause of death, it had to be investigated and the COD changed. Well if they retest all the samples and there is NO arsenic ANYWHERE, shouldn't that qualify as new evidence?

[NotAgain]

Cynthia deserves justice ,,,,, she was denied it for years ,.. sitting in jail on these obviously bad chgs. $$$$$$$$$$$$$$ is owed Cyndi and family.

[dref99]

Just from what I got from Kanzz on the phone...Looks like Judge Einhorn says that the court doesn't have the authority to dismiss with prejudice but doesn't see any way that she will ever be charged again. Not only that it seems as if he said something like he thinks double jeopardy may apply. Not sure how, but hoping to get a copy of the motion to see the exact wording.

Mr Bloom says this is the end of this part but the civil suit will continue.

Everyone is taking it very well. I think I am taking it worse than they are.

Pia

thanks for all your updates - I think "it stinks" too.

I seem to remember reading that one cannot sue the prosecutor in a case such as this - do you know anything about that?

Pammi2

Many thanks for the details - it is a good reminder that she was convicted because she didn't dress in black and lock herself up after her husband died. It also shows the very bad side of forensics which never seem to be shown on the TV shows.


jmo

[wcrapkin]

Google the US Supreme Courts ruling in Goldstein v. Van De Kamp and you'll see why Sommers claims against Dumanis and Gunn are bound to be dismissed. She might prevail against the other parties but based on the Supreme Courts holding in Goldstein I don't see how even the most sympathetic liberal judge is going to be able to sustain this lawsuit.

[wcrapkin]

From ScotusWiki:
The case of Van de Kamp v. Goldstein (07-854) involved a plea to the Court by a former chief prosecutor in Los Angeles, John Van de Kamp, and his chief deputy, Curt Livesay. They were seeking to head off a civil rights damages lawsuit by a man who had been prosecuted and convicted of murder in 1980. That conviction had been based in part upon the testimony of a jailhouse informant about a confession to the murder by Thomas Lee Goldstein.

After Goldstein served 24 years in prison, he was released based upon a court finding that the jailhouse informant had been given favorable treatment for his information, but that fact was never shared — as it should have been — with Goldstein’s defense lawyer. Goldstein then brought his civil rights lawsuit, claiming that some prosecutors knew about the informant’s favorable treatment, but the word did not get passed to defense counsel, mainly because the leaders of the office failed to train line prosecutors to share such information, failed to supervise the line attorneys, and failed to create a system for retaining and sharing information about informants.

The two top prosecutors lost their bid for immunity in the Ninth Circuit Court, which concluded that the duties involved in Goldstein’s challenge were administrative, not prosecutorial as such.

Overturning that result Monday, the Court, in an opinion by Justice Stephen G. Breyer, spent only about half of a 12-page opinion analyzing the immunity issue, but in the course of doing so brought under legal protection all of the tasks that Van de Kamp and Livesay allegedly failed to perform adequately as supervisors. The Court thus concluded that training, supervision and information-sharing are not “administrative,” in the sense of lacking legal immunity, when they are found to be “directly connected with the conduct of a trial.”

While conceding that training, supervision or information-management tasks for supervisors might sometimes be lacking in immunity from damages liability, the Court interpreted the claimed lapses in Goldstein’s case to be shielded because they were keyed to an error by the line prosecutor. “The types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management.”

Summing up, Breyer wrote that, when a civil rights lawsuit claims “that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at [a] particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”

[edit] Links and further information

[dref99]

Google the US Supreme Courts ruling in Goldstein v. Van De Kamp and you'll see why Sommers claims against Dumanis and Gunn are bound to be dismissed. She might prevail against the other parties but based on the Supreme Courts holding in Goldstein I don't see how even the most sympathetic liberal judge is going to be able to sustain this lawsuit.

Thankyou for the case and detail - I had thought this had been tested before. presumably her lawyers will attempt to explain why this is different. It will be interesting from a legal viewpoint - which will not, of course, be of benefit to Cynthia - I do hope she gets some resolution.


jmo

[Jay]

I agree, this stinks.

If the court doesn't have the authority to dismiss with prejudice, then who does? And didn't the court know that all along?


This type of claim can not be dismissed with prejudice, as the looser has the right to appeal.

You can bet the 1st act of all defendants will be to file a Motion to Dismiss, sure, but even if granted in whole, appeal is a right.

I can't see this a total dismissal, so even if granted in part and sustained in part, it is ripe for appeal. Then both sides will argue why they should not have been sustained on the dismissed causes of actions.

[Jay]

From ScotusWiki:
The case of Van de Kamp v. Goldstein (07-854) involved a plea to the Court by a former chief prosecutor in Los Angeles, John Van de Kamp, and his chief deputy, Curt Livesay. They were seeking to head off a civil rights damages lawsuit by a man who had been prosecuted and convicted of murder in 1980.


There are other named defendants besides Prosecutors though, so absolute/prosecutorial immunity would not apply, maybe qualified immunity?

Yes, it is true the plaintiff's need to prove why AI would not apply to the prosecutors. This can be done, IF the facts are clear and relative.