NEW YORK — Cindy Sommer will be back in court Friday as her attorney argues that a pending murder charge should be dismissed with prejudice, meaning she could never face a retrial. Sommer was convicted of the arsenic poisoning of her husband, Todd, an active duty Marine, in January 2007. She was never sentenced to the mandatory term of life without parole because the judge ordered a new trial after finding her trial attorney made errors that tainted the process. The new trial was scheduled to begin last May but in April the San Diego District Attorney suddenly moved to dismiss the charges without prejudice. The mother of four had been in jail since November 2005 for a crime she says she did not commit. She was immediately released and has been living with relatives in northern California since then.

Earlier this year, in preparation for the new trial, the District Attorney had discovered more tissues from Sommer’s husband, taken at autopsy, and stored separately from tissues tested and used at the first trial. If Sommer had, indeed, murdered her husband by feeding him arsenic-laced food or drink, then these new tissues should have tested positive for arsenic. But they did not. There was no arsenic in any of the tissues which, incidentally, were taken from the same organs as those used at trial where arsenic was present. The difference was in how they were stored and where they were tested. Some samples were preserved in formaldehyde and others were frozen. The new tissues had been preserved in a third way, in paraffin blocks. The tissues used at trial were analyzed at a government lab. The new tissues were analyzed at a private lab in Quebec.The defense has always maintained that the samples used at trial were contaminated.

A new judge, John Einhorn, is hearing the motion to dismiss but Sommer’s attorney, Allen Bloom, wants the matter to go back to the original trial judge, Peter Deddeh, who is currently assigned to a different courthouse. The District Attorney’s position is that since the case was dismissed a few months ago there is no matter pending before Judge Einhorn and, hence, he has no jurisdiction to consider the motion. Sommer’s attorney, Allen Bloom, says that Einhorn or Deddeh has jurisdiction to hear it and that the court can consider not only evidence introduced at the trial but also the new evidence of arsenic-free tissues from Sommer’s husband that led to her release from jail.

–Beth Karas, In Session correspondent