Section V: Facts Behind McCants and Cruz Delvalle Homicide Convictions

We Pick Your Attorney, Whether You Like It Or Not: The Fountain Homicide and McCants Conviction #1

In 2003, Thomas McCants was charged with the homicide of Lizette Fountain.  Sommers was then representing McCants on another Dane County criminal case and on a federal case.  Sommers was representing McCants on both because McCants had personally requested that Sommers represent him.  A few months before McCants was charged with the homicide, his SPD staff attorney suggested that he withdraw on McCants’ state case to make it easier for Sommers to become McCants attorney through the SPD, if McCants went from a suspect to the defendant on the homicide.

When McCants was charged with the homicide, Sommers received a call from Deb Smith of the Madison State Public Defender Office to confirm if he was still willing to represent McCants on the homicide.  The following day, Sommers received a call from Deb Smith shortly before the scheduled court appearance, wherein she now informed Sommers that she was preventing him from becoming McCants’ attorney on the homicide.  Her purported rationale was that an unnamed Dane County judge had complained about Sommers, and she claimed that Sommers was not certified to be appointed on homicide cases through the State Public Defender.

Deb Smith’s decision came in the following context:  First, it was an open secret that Sommers’ defense strategy for McCants was going to be that the evidence actually pointed to the son of a local politician as being the killer; and that McCants was being framed due to this individual appearing to be protected by corrupt cops.

One reason why the above would have been an open secret was because it was inadvertently revealed that attorney/client conversations between Sommers and McCants had improperly been recorded.  Another component, which made Deb Smith’s rationale both bizarre and implausible, was that at that time Sommers had won his last five jury trials against the Dane County District Attorney’s Office, and eleven out of his previous fifteen.  Her rationale was even stranger in light of the fact that at that very time, Sommers was handling homicide cases through the SPD and had recently turned down another homicide appointment.

The above being pointed out to Deb Smith made no difference.  Later, Sommers would be told that it was a bureaucratic mix-up and that he needed to re-apply to be re-certified.  After Deb Smith blocked Sommers being appointed by the SPD, he decided to represent McCants pro bono.  Neither the Dane County DA’s Office nor the Dane County courts would permit this to happen.

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Sommers would be removed as McCants’ attorney.  Before this, the Dane County DA’s Office successfully (and as far as one can ascertain, without any legal basis) had the case transferred from the assigned judge, James Martin, to Judge Gerald Nichol, who incidentally it appears was the judge with which Deb Smith had had her conversation.  Sommers’ removal was due to Sommers supposedly having a conflict of interest for representing both Thomas McCants and a Steven Collins.

The conflict scenario was set up because on May 14, 2003, Collins met with a case detective investigating the death of Lizette Fountain, while Collins was an inmate in the Dane County Jail.  They discussed Collins’ information on the homicide for which McCants would be charged.

Collins, while still in the Dane County Jail, met with a case detective on May 23, 2003.  Immediately after this meeting, Collins, for some reason, called the State Public Defender and asked the State Public Defender to discharge his then-attorney on his pending state cases and to have her replaced with Sommers.

Pursuant to Collins’ request, the State Public Defender called Sommers that very day and asked Sommers to represent Collins.  Sommers, unaware of Collins’ meetings with the case detectives, agreed to represent Collins, as he often did on requested appointments.  Five days later Sommers met with Collins for the first time.

Collins informed Sommers that he requested Sommers because he was aware that Sommers was McCants’ attorney, and that he knew McCants was innocent due to Collins’ first-hand knowledge to  who was the killer.  Collins claimed that he had tried to pass this information on to police and the DA’s Office, but had been discouraged from doing so.

Collins’ information was investigated and Sommers and McCants both concluded it could not be truthful.  Sommers then informed the court that he would not be presenting evidence related to Collins’ story.

Later when Sommers confronted Collins about the implausibility of Collins’ story, Collins claimed that Collins was part of a plot hatched between case detectives and Collins to discredit and destroy Sommers.  Collins claimed that detectives promised him that Collins would be amply rewarded if he testified when called as a witness by Sommers that someone else had confessed to him to killing Fountain.  And then, Collins was to act as if broken down by cross-examination, and go on to claim his prior testimony was perjury, and that he had been put up to it by Sommers.

Collins told Sommers that when it was known that Sommers did not believe Collins’ information on the homicide, the plot turned to having Sommers removed for a purported conflict of interest.

For those who find it difficult that something like this could take place, read on…